This case was last updated from Los Angeles County Superior Courts on 07/12/2019 at 01:56:29 (UTC).

DONALD BARRON VS WARNER BROS RECORDS INC ET AL

Case Summary

On 02/27/2018 DONALD BARRON filed a Personal Injury - Other Personal Injury lawsuit against WARNER BROS RECORDS INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6215

  • Filing Date:

    02/27/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN I. GOORVITCH

 

Party Details

Plaintiff and Petitioner

BARRON DONALD

Respondents and Defendants

BATTLE HERBERT

PRIME ZERO PRODUCTIONS

"LIL PUMP"

WARNER BROS. RECORDS INC.

GARCIA GAZZY

GRIFFIN BEN

DOES 1 TO 50

STENGER ERIC

HEIDTMANN TROY

LUXURY EXOTICS INC.

THA LIGHTS GLOBAL

PUMP" "LIL

GLOBAL THA LIGHTS

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GOLDMAN KENNETH A. ESQ.

PANISH BRIAN J. ESQ.

KLEIN CANDICE SLOANE

Defendant Attorneys

NAGLE MARK JOSEPH

FOX DANA ALDEN

GOWER RICHARD S. ESQ.

MIHELL MONICA

SCHENA JOHN A.

 

Court Documents

Notice of Change of Firm Name

2/26/2019: Notice of Change of Firm Name

Answer

2/26/2019: Answer

Association of Attorney

3/15/2019: Association of Attorney

Joinder

5/9/2019: Joinder

Ex Parte Application

5/10/2019: Ex Parte Application

Minute Order

5/10/2019: Minute Order

Notice

5/13/2019: Notice

Request for Dismissal

6/4/2019: Request for Dismissal

ANSWER OF DEFENDANTS PRIME ZERO PRODUCTIONS AND BEN GRIFFIN TO THE COMPLAINT

5/15/2018: ANSWER OF DEFENDANTS PRIME ZERO PRODUCTIONS AND BEN GRIFFIN TO THE COMPLAINT

Proof of Service

5/15/2018: Proof of Service

DEFENDANT WARNER BROS. RECORDS INC.'S ANSWER TO COMPLAINT

5/18/2018: DEFENDANT WARNER BROS. RECORDS INC.'S ANSWER TO COMPLAINT

GENERAL DENIAL

6/19/2018: GENERAL DENIAL

SUBSTITUTION OF ATTORNEY

7/12/2018: SUBSTITUTION OF ATTORNEY

Notice of Rejection - Ex Parte Application Without Hearing

11/28/2018: Notice of Rejection - Ex Parte Application Without Hearing

Declaration re: Due Diligence

1/9/2019: Declaration re: Due Diligence

Proof of Service by Substituted Service

1/9/2019: Proof of Service by Substituted Service

Answer

1/18/2019: Answer

COMPLAINT FOR DAMAGES

2/27/2018: COMPLAINT FOR DAMAGES

7 More Documents Available

 

Docket Entries

  • 06/04/2019
  • at 10:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Informal Discovery Conference (IDC)

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  • 06/04/2019
  • Request for Dismissal; Filed by Donald Barron (Plaintiff)

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  • 05/13/2019
  • Notice (of Ruling Regarding Trial and Final Status Conference Continuance); Filed by Warner Bros. Records, Inc. (Defendant)

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  • 05/10/2019
  • at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Hearing on Ex Parte Application (to continue trial and all related dates) - Held - Motion Granted

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  • 05/10/2019
  • Minute Order ( (Hearing on Ex Parte Application to continue trial and all rel...)); Filed by Clerk

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  • 05/10/2019
  • Ex Parte Application (to continue trial); Filed by Warner Bros. Records, Inc. (Defendant)

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  • 05/09/2019
  • Joinder (to Ex Parte Application); Filed by Gazzy Garcia (Defendant)

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  • 03/15/2019
  • Association of Attorney; Filed by Troy Heidtmann (Defendant); Tha Lights Global (Defendant)

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  • 02/26/2019
  • Answer; Filed by Troy Heidtmann (Defendant); Tha Lights Global (Defendant)

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  • 02/26/2019
  • Notice of Change of Firm Name; Filed by Ben Griffin (Defendant); Prime Zero Productions (Defendant)

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6 More Docket Entries
  • 06/19/2018
  • General Denial; Filed by Herbert Battle (Defendant); Eric Stenger (Defendant); Luxury Exotics, Inc. (Defendant)

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  • 06/19/2018
  • GENERAL DENIAL

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  • 05/18/2018
  • DEFENDANT WARNER BROS. RECORDS INC.'S ANSWER TO COMPLAINT

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  • 05/18/2018
  • Answer; Filed by Warner Bros. Records, Inc. (Defendant)

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  • 05/15/2018
  • ANSWER OF DEFENDANTS PRIME ZERO PRODUCTIONS AND BEN GRIFFIN TO THE COMPLAINT

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  • 05/15/2018
  • Proof of Service

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  • 02/27/2018
  • COMPLAINT FOR DAMAGES

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  • 02/27/2018
  • SUMMONS

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  • 02/27/2018
  • Complaint; Filed by Donald Barron (Plaintiff)

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  • 02/27/2018
  • Summons; Filed by Donald Barron (Plaintiff)

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Tentative Rulings

Case Number: BC696215    Hearing Date: April 26, 2021    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

DONALD BARRON,

Plaintiffs,

vs.

WARNER BROS. RECORDS INC., et al.,

Defendants.

CASE NO: BC696215

[TENTATIVE] ORDER RE:

DEFENDANT WARNER RECORDS INC. F/K/A WARNER BROS. RECORDS INC.’S MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION

Dept. U

8:30 a.m.

April 26, 2021

I. BACKGROUND

On February 27, 2018, Plaintiff Donald Barron (“Plaintiff”) filed a complaint against Defendants Warner Bros. Records, Inc.; Gazzy Garcia aka “Lil Pump” (“Garcia”); Herbert Battle (“Battle”); Troy Heidtmann (“Heidtmann”); Eric Stenger (“Stenger”); Ben Griffin (“Griffin”); Luxury Exotics, Inc. (“Luxury Exotics”); Tha Lights Global; Prime Zero Productions (“Prime Zero”); and Does 1 through 50 for (1) negligence and (2) negligence entrustment. Plaintiff alleges that on October 11, 2017, Garcia, Battle, and Does 1 through 25 negligently and recklessly drove a Bentley, which was owned and maintained by Defendants Stenger and Luxury Exotics, at a high and unsafe speed for the road conditions and collided with the passenger side of Plaintiff’s vehicle, seriously injuring Plaintiff. Plaintiff alleges Garcia, Battle and Does 1 through 25 pulled Plaintiff, who was unconscious and seriously injured, from his vehicle and left him in the roadway, failing to render reasonable assistance. Plaintiff alleges all defendants are responsible for negligently owning, leasing, managing, maintaining, entrusting, controlling, and operating the Bentley that collided with Plaintiff’s vehicle.

On June 24, 2019, dismissal was entered as to Defendants Griffin and Prime Zero pursuant to Plaintiff’s request.

On October 28, 2019, Plaintiff filed amendments to complaint, substituting in Joshua Taylor aka “Desto Dubb” and William Morris Endeavor Entertainment, LLC for Does 1 and 2, respectively.

On July 1, 2020, the Court sustained Defendant William Morris Endeavor Entertainment, LLC’s demurrer to complaint with leave to amend.

On July 29, 2020, the Court received a First Amended Complaint from Plaintiff. The FAC was filed on August 19, 2020.

On November 17, 2020, Defendant Warner Records Inc. f/k/a Warner Bros. Records Inc. (“Defendant” or “WBR”) filed a motion for summary judgment or summary adjudication. No opposition has been filed.

II. LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) 

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf Genisman “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Id.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi Urgente

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, supra, 159 Cal.App.4th at p. 467; Code Civ. Proc., § 437c,(c).)

III. DISCUSSION

Defendant WBR moves for summary judgment or summary adjudication as to “the operative complaint of [Plaintiff].” (Motion, p. 2: 1.) From this, the Court notes that it is unclear whether WBR is moving for summary judgment as to the original complaint or the First Amended Complaint. However, the “operative complaint” attached to Defendant’s evidence is the original complaint filed on February 27, 2018. (Stayton Decl., ¶ 2; Defendant’s Evidence, Ex. A.) Defendant’s separate statement also references the original complaint and not the First Amended Complaint. Defendant WBR’s motion is thus to the original complaint.

An amended complaint supersedes all prior complaints. (State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130-31.) The amended complaint furnishes the sole basis for the cause of action, and the original complaint ceases to have any effect either as a pleading or as a basis for judgment. (Id.) Since there is but one complaint in a civil action, the filing of an amended complaint moots a motion directed to a prior complaint. (Id.) Accordingly, once an amended complaint is filed, it is error to grant summary judgment or adjudication on a cause of action contained in a previous complaint. (Id.)

As discussed, Defendant WBR’s motion for summary judgment is to the original complaint. The operative complaint is the First Amended Complaint filed on August 19, 2020, which superseded the original complaint. Defendant’s motion for summary judgment or summary adjudication is thus moot.

IV. CONCLUSION

Based on the foregoing, Defendant Warner Records Inc. f/k/a Warner Bros. Records Inc.’s motion for summary judgment or summary adjudication is TAKEN OFF CALENDAR AS MOOT.

Moving party to give notice.

DATED: April 26, 2021

_____________________

Hon. Bernie C. LaForteza

Judge of the Superior Court

Case Number: BC696215    Hearing Date: January 07, 2021    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

DONALD BARRON, an individual,

Plaintiff,

vs.

WARNER BROS. RECORDS, INC., a corporation; GAZZY GARCIA aka “LIL PUMP,” an individual; HERBERT BATTLE, an individual; TROY HEIDTMANN, an individual; BEN GRIFFIN, an individual; LUXURY EXOTICS, INC., a corporation, THA LIGHTS GLOBAL, a corporation; PRIME ZERO PRODUCTIONS, a corporation; and DOES 1 through 50, inclusive,

Defendants.

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CASE NO: BC696215

[TENTATIVE] ORDER RE: TAYLOR’S MOTION TO STRIKE

Dept. U

8:30 a.m.

January 7, 2021

I. BACKGROUND

On February 27, 2018, Donald Barron (Plaintiff) initiated this action against Warner Bros. Records, Inc. (Warner Bros.), Gazzy Garcia aka “Lil Pump” (Garcia), Herbert Battle (Battle), Troy Heidtmann (Heidtmann), Ben Griffin (Griffin), Luxury Exotics, Inc. (Luxury Exotics), Tha Lights Global (Tha Lights), Prime Zero Productions (Prime Zero), and Does 1 through 50. Plaintiff amended the complaint on October 28, 2019 naming Joshua Taylor, aka Desto Dubb (Taylor), as Doe Defendant 1 and William Morris Endeavor Entertainment, LLC (Endeavor) as Doe Defendant 2. Plaintiff filed a first amended complaint (FAC) on August 19, 2020, alleging claims for: (1) negligence and (2) negligent entrustment.

In relevant part, the FAC provides as follows. On October 11, 2017, at approximately 2:20 p.m., Plaintiff was driving southbound on Shoup Avenue in Los Angeles in his 2015 Nissan Pathfinder. (FAC, ¶ 15.) Garcia, Battle, Taylor (as Doe 1) and the other Does were driving a Bentley at a very high speed near the intersection of Shoup Avenue and Oxnard Street. (Ibid.) The Bentley was owned and maintained by Stenger and Luxury Exotics. (Ibid.) The Bentley collided with the passenger side of Plaintiff’s vehicle. (Ibid.) As a result, Plaintiff was severely injured. (Ibid.) Garcia, Battle, Taylor and Does pulled Plaintiff from his vehicle and left him in the roadway. (Ibid.) Garcia, Battle, Taylor and Does retrieved a large duffel bag from the trunk of the Bentley before fleeing the scene of the accident on foot. (Ibid.) Garcia, Battle, and Does left Plaintiff unconscious and injured in the roadway, along with the Bentley. (Ibid.)

On September 1, 2020, Taylor filed this motion to strike pursuant to Code of Civil Procedure section 436 on the grounds that Plaintiff’s references to and requests for punitive damages against him are not pled with specific facts.

II. LEGAL STANDARDS

A. Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

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B. Leave to Amend

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)

III. DISCUSSION

A. Meet & Confer Requirement

Before filing a demurrer or motion to strike, the moving party is required to meet and confer with the party who filed the pleading for the purposes of determining whether an agreement can be reached through the filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41 & 435.5.) Taylor’s counsel contacted Plaintiff’s counsel about this motion. The parties could not reach a resolution, thus, this motion ensued. (Kelly Decl., ¶¶ 3-4.)

B. Motion to Strike

Taylor moves to strike any references to or requests for punitive damages in Plaintiff’s FAC. This includes Paragraph 22 of the FAC and Paragraph five under the FAC’s Prayer.

Civil Code section 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” (Civ. Code, § 3294(a).) “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Id., § 3294(c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id., § 3294(c)(2).) “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id., § 3294(c)(3).)

Punitive damages require more than the mere commission of a tort. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-895.) Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.) A plaintiff must establish the defendant was aware of the probable dangerous consequences of his conduct and that he willfully and deliberately failed to avoid those consequences to support an award of punitive damages based on conscious disregard of the safety of others. (Penner v. Falk (1984) 153 Cal.App.3d 858, 867.)

Plaintiff pleads Taylor consciously disregarded the safety of Plaintiff by operating the vehicle at an extremely high and unsafe speed in a residential neighborhood and, in doing so, violated the California Vehicle Code and struck Plaintiff’s vehicle. (FAC, ¶ 23.) Thereafter, rather than assist Plaintiff with his injuries, Taylor helped to pull Plaintiff from his vehicle and then left him on the side of the road. (Ibid.)

Taylor takes issue with Plaintiff’s complaint asserting that it is a factual impossibility that three or more persons were driving the vehicle at the time of the collision and that Plaintiff needs to provide more details to demonstrate that Taylor was involved in the collision as a driver. This argument goes to a dispositive motion like one seeking summary judgment. On a motion to strike, the Court takes the allegations of the complaint as true and, while it may be theoretically impossible for several persons to be driving a Bentley at the same time, it is not improper for Plaintiff to assert contradictory claims as alternative theories in the same complaint. As a result, Taylor’s attacks on the complaint are without merit.

Applying the proper standards for evaluating a motion to strike, the Court finds that Plaintiff has pled facts against Taylor constituting malice under Code of Civil Procedure section 3294. Therefore, Taylor’s motion to strike punitive damages against him is not well-taken.

IV. CONCLUSION

For the foregoing reasons, Taylor’s motion to strike punitive damages against him from Plaintiff’s FAC is DENIED.

Plaintiff is ordered to give notice of this Court’s ruling.

DATED: January 7, 2021

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court

Case Number: BC696215    Hearing Date: December 08, 2020    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

DONALD BARRON, an individual,

Plaintiff,

vs.

WARNER BROS. RECORDS, INC., a corporation; GAZZY GARCIA aka “LIL PUMP,” an individual; HERBERT BATTLE, an individual; TROY HEIDTMANN, an individual; BEN GRIFFIN, an individual; LUXURY EXOTICS, INC., a corporation, THA LIGHTS GLOBAL, a corporation; PRIME ZERO PRODUCTIONS, a corporation; and DOES 1 through 50, inclusive,

Defendants.

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CASE NO: BC696215

[TENTATIVE] ORDER RE: WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC’S DEMURRER TO FIRST AMENDED COMPLAINT AND MOTION TO STRIKE

Dept. U

8:30 a.m.

December 8, 2020

I. BACKGROUND

On February 27, 2018, Donald Barron (Plaintiff) initiated this action against Warner Bros. Records, Inc. (Warner Bros.), Gazzy Garcia aka “Lil Pump” (Garcia), Herbert Battle (Battle), Troy Heidtmann (Heidtmann), Ben Griffin (Griffin), Luxury Exotics, Inc. (Luxury Exotics), Tha Lights Global (Tha Lights), Prime Zero Productions (Prime Zero), and Does 1 through 50. Plaintiff amended the complaint on October 22, 2019 naming William Morris Endeavor Entertainment, LLC (Endeavor) as Doe number 2. Plaintiff filed a first amended complaint (FAC) on August 19, 2020, alleging claims for: (1) negligence and (2) negligent entrustment.

In relevant part, the FAC provides as follows. On October 11, 2017, at approximately 2:20 p.m., Plaintiff was driving southbound on Shoup Avenue in Los Angeles in his 2015 Nissan Pathfinder. (FAC, ¶ 15.) Garcia, Battle, and Does were driving a Bentley at a very high speed near the intersection of Shoup Avenue and Oxnard Street. (Ibid.) The Bentley was owned and maintained by Stenger and Luxury Exotics. (Ibid.) The Bentley collided with the passenger side of Plaintiff’s vehicle. (Ibid.) As a result, Plaintiff was severely injured. (Ibid.) Garcia, Battle, and Does pulled Plaintiff from his vehicle and left him in the roadway. (Ibid.) Garcia, Battle, and Does retrieved a large duffel bag from the trunk of the Bentley before fleeing the scene of the accident on foot. (Ibid.) Garcia, Battle, and Does left Plaintiff unconscious and injured in the roadway, along with the Bentley. (Ibid.)

On September 4, 2020, Endeavor filed this demurrer to Plaintiff’s FAC pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f) on the grounds that Plaintiff fails to allege that Endeavor owed Plaintiff any legal duty and that Endeavor cannot be held vicariously for Garcia’s tortious conduct. Additionally, Endeavor filed an accompanying motion to strike any request for punitive damages against it pursuant to Code of Civil Procedure section 436(a).

II. LEGAL STANDARD

A. Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda, supra, 147 Cal.App.4th at p. 747.)

Code of Civil Procedure section 430.10(f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (Code Civ. Proc., § 430.10(f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85.) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Ibid.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)  

B. Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

C. Leave to Amend

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)

III. DISCUSSION

A. Meet & Confer Requirement

Before filing a demurrer or motion to strike, the moving party is required to meet and confer with the party who filed the pleading for the purposes of determining whether an agreement can be reached through the filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41 & 435.5.) Endeavor’s counsel sent Plaintiff’s counsel a meet and confer email outlining Endeavor’s arguments on demurrer. Endeavor has satisfied its meet and confer obligation. (Greco declaration, ¶ 3 & exhibit A.)

B. Negligence

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of that duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

In this case, Plaintiff pleads that Endeavor “owned, leased, maintained, inspected, entrusted, delegated, managed, regulated, negotiated for, controlled and operated the [Bentley].” (FAC, ¶ 17.) Plaintiff alleges Endeavor “negotiated and arranged” for Garcia to operate the Bentley even though it knew he was underage and not licensed to operate a motor vehicle. (Id., ¶ 18.) Plaintiff pleads Endeavor “owed a duty of care to all reasonably foreseeable people, including Plaintiff, to own, lease, maintain, inspect, entrust, delegate, manage, regulate, negotiate for, control and operate the SUBJECT BENTLEY in a reasonable manner. Plaintiff is further informed and believes, and thereon alleges, that said Defendants also owed a nondelegable duty to third persons, including Plaintiffs, for any harm caused by the negligence or other wrongful conduct of independent contractor(s) and/or agent(s).” (Id., ¶ 19.) Plaintiff alleges that Endeavor negligently owned, managed, entrusted, and negotiated for the Bentley and, that such negligence, caused Plaintiff’s injuries. (Id., ¶ 20.) Plaintiff pleads he has been damaged in an amount to be proven at trial, including lost earnings, earning capacity, and property damage. (Id., ¶ 30.)

Endeavor contends that Plaintiff fails to show that it owed Plaintiff any duty of care. Factors to consider in determining whether a defendant owes a duty of care are: (1) the extent to which the transaction was intended to affect the plaintiff; (2) the foreseeability of harm to the plaintiff; (3) the degree of certainty that the plaintiff suffered injury; (4) the closeness of the connection between the defendant's conduct and the injury suffered; (5) the moral blame attached to the defendant's conduct; and (6) the policy of preventing future harm. (Biakanja v. Irving (1958) 49 Cal.2d 647, 650.)

Generally, a person has no duty to control the conduct of third parties. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 533.) However, a legal duty may arise “where the defendant, through his or her own action (misfeasance) has made the plaintiff’s position worse and has created a foreseeable risk of harm from the third person” or where there is a special relationship between the plaintiff and defendant and defendant has failed to aid plaintiff through beneficial intervention (nonfeasance). (Id. at 531.) A duty to take affirmative action to control the wrongful acts of a third party will only be imposed where the risk of harm from third party conduct is foreseeable. (Id. at 532.)

Here, while Endeavor’s negotiating and procuring the Bentley for Garcia’s use was not intended to affect Plaintiff, it is foreseeable that Garcia would hit another vehicle while driving the Bentley and injure other drivers and passengers. Any time a driver operates a vehicle on the road, it is foreseeable that another vehicle or person could be struck and injured. This is an inherent risk in operating a vehicle. This risk is compounded by the fact that Garcia was only 17 years old and did not have a driver’s license when Endeavor obtained the Bentley for his use. A person without a valid driver’s license should, presumptively, not be operating a motor vehicle.

While Plaintiff does not allege that Endeavor directly injured him, the connection between Endeavor’s action of securing the Bentley for Garcia and Garcia conduct of striking Plaintiff’s vehicle while driving it is close enough to impose a duty on Endeavor. But for Endeavor obtaining the Bentley for Garcia, Garcia would not have struck Plaintiff’s vehicle with the Bentley.

Endeavor’s reliance on Civil Code section 2343 is a red herring. The Court does not read Plaintiff’s allegations as seeking to impose liability on Endeavor through vicarious liability for the negligence of its principal, Defendant Garcia, but rather based on Endeavor’s own negligence in procuring and negotiating the rental of the Bentley for Garcia’s use. Such a theory falls explicitly within the scope of an agent’s liability which may be found where the agent’s “acts are wrongful in their nature.” (Civil Code section 2343, subdivision 3.)

The Court finds that Plaintiff has pled facts sufficient to constitute negligence against Endeavor. Demurrer to this claim is overruled.

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C. Negligent Entrustment

Negligent entrustment requires: (1) the driver negligently operated a vehicle; (2) the defendant owned that vehicle; (3) the defendant knew, or should have known, the driver was unfit or incompetent for driving; (4) defendant permitted that driver to use the vehicle; and (5) a substantial factor in causing harm to the plaintiff was that unfitness or incompetence. (Jeld-Wen, Inc. v. Sup. Ct. (2005) 131 Cal.App.4th 853, 863-864 (quoting CACI No. 724).

Here, Plaintiff does not plead negligent entrustment of the Bentley against Endeavor. Plaintiff does not include Endeavor in the cause of action’s heading nor is Endeavor mentioned in the body of the claim until Plaintiff alleges causation and damages. Further, Plaintiff does not plead duty or breach against Endeavor as to the negligent entrustment claim.

Therefore, Plaintiff has not plead facts constituting negligent entrustment against Endeavor. Demurrer to this claim is sustained.

D. Motion to Strike

Endeavor moves to strike all references to and requests for punitive damages against it in the FAC. Civil Code section 3294 authorizes the recovery of punitive damages in non-contract cases where “the defendant has been guilty of oppression, fraud, or malice . . . .” (Civ. Code, § 3294(a).) “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Id., § 3294(c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id., § 3294(c)(2).) “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id., § 3294(c)(3).)

Punitive damages require more than the mere commission of a tort. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-895.) Specific facts must be pled in support of punitive damages. (Hillard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 391-392.) A plaintiff must establish the defendant was aware of the probable dangerous consequences of his conduct and that he willfully and deliberately failed to avoid those consequences to support an award of punitive damages based on conscious disregard of the safety of others. (Penner v. Falk (1984) 153 Cal.App.3d 858, 867.)

When the defendant is a corporation, “the oppression, fraud, or malice must be perpetrated, authorized, or knowingly ratified by an officer, director, or managing agent of the corporation.” (Wilson v. Southern California Edison Company (2015) 234 Cal.App.4th 123, 164; Civ. Code § 3294(b).)

While Plaintiff adequately pleads facts constituting negligence against Endeavor, no facts are pled supporting punitive damages. Plaintiff alleges Endeavor was negligent in obtaining the Bentley for Garcia to drive when it knew he was only 17 and did not have a license to operate a vehicle. In support of punitive damages, Plaintiff pleads Endeavor’s procurement of the Bentley for Garcia amounts to “willful and malicious” conduct that exhibited “a conscious disregard for the rights, safety and welfare of others.” Moreover, Plaintiff alleges Endeavor deliberately engaged in the negotiations leading to Garcia’s use of the Bentley. (FAC, ¶ 22, 24(b) – (c).) However, while Endeavor intended to obtain the Bentley for Garcia to drive, Plaintiff does not plead facts showing Endeavor intended to cause harm to Plaintiff through Garcia’s use of the Bentley. Therefore, Plaintiff pleads no facts supporting Endeavor acted maliciously, oppressively, or fraudulently in injuring Plaintiff. Plaintiff merely pleads conclusory statements purporting to warrant punitive damages.

Moreover, even if Plaintiff had pled facts showing that Endeavor intended to cause Plaintiff harm, Plaintiff does not plead that any officer, director, or authorized agent of the corporation furthered Endeavor’s allegedly malicious, oppressive, or fraudulent conduct.

Plaintiff has not filed an opposition to Endeavor’s motion to strike and, in any event, will have the opportunity to amend his complaint if evidence develops supporting punitive damages.

Therefore, the Court grants Endeavor’s motion to strike any references to or requests for punitive damages as to it stricken from Plaintiff’s FAC.

IV. CONCLUSION

For the foregoing reasons, Endeavor’s demurrer to Plaintiff’s FAC is OVERRULED as to negligence and SUSTAINED as to negligent entrustment.

Endeavor’s motion to strike is GRANTED, without prejudice to a later motion to amend if Plaintiff secures evidence that would support a prayer for punitive damages.

Plaintiff is ordered to give notice of the Court’s ruling.

DATED: December 8, 2020

_____________________

Hon. Theresa M. Traber

Judge of the Superior Court

Case Number: BC696215    Hearing Date: July 01, 2020    Dept: U

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - NORTHWEST DISTRICT

DONALD BARRON, an individual,

Plaintiff,

vs.

WARNER BROS. RECORDS, INC., a corporation; GAZZY GARCIA aka “LIL PUMP,” an individual; HERBERT BATTLE, an individual; TROY HEIDTMANN, an individual; BEN GRIFFIN, an individual; LUXURY EXOTICS, INC., a corporation, THA LIGHTS GLOBAL, a corporation; PRIME ZERO PRODUCTIONS, a corporation; and DOES 1 through 50, inclusive,

Defendants.

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CASE NO: BC696215

[TENTATIVE] ORDER RE: WILLIAM MORRIS ENDEAVOR ENTERTAINMENT, LLC’S DEMURRER TO COMPLAINT AND MOTION TO STRIKE

Dept. U

8:30 a.m.

July 1, 2020

I. BACKGROUND

On February 27, 2018, Donald Barron (Plaintiff or Barron) filed a complaint against Warner Bros. Records, Inc. (Warner Bros.), Gazzy Garcia aka “Lil Pump” (Garcia), Herbert Battle (Battle), Troy Heidtmann (Heidtmann), Ben Griffin (Griffin), Luxury Exotics, Inc. (Luxury Exotics), Tha Lights Global (Tha Lights), Prime Zero Productions (Prime Zero), and Does 1 through 50. The Complaint alleges: (1) negligence and (2) negligent entrustment. Plaintiff amended the complaint on October 22, 2019 to name William Morris Endeavor Entertainment, LLC (Endeavor) in place of Doe 2.

In relevant part, the Complaint provides: (1) On October 11, 2017, at approximately 2:20 p.m., Plaintiff was driving southbound on Shoup Avenue in Los Angeles in his 2015 Nissan Pathfinder (Complaint, ¶13); (2) Garcia, Battle, and Does were driving a Bentley at a very high speed near the intersection of Shoup Avenue and Oxnard Street (id.); (3) The Bentley was owned and maintained by Stenger and Exotics (id.); (4) The Bentley collided with the passenger side of Plaintiff’s vehicle (id.); (5) As a result, Plaintiff was severely injured (id.); (6) Garcia, Battle, and Does pulled Plaintiff from his vehicle and left him in the roadway (id.); (7) Garcia, Battle, and Does retrieved a large duffel bag from the trunk of the Bentley before fleeing the scene of the accident on foot (id.); and (8) Garcia, Battle, and Does left Plaintiff unconscious and injured in the roadway, along with the Bentley (id.)

Endeavor filed this demurrer with motion to strike as to the first cause of action of Plaintiff’s complaint pursuant to Code of Civil Procedure section 430.10, subdivisions (e) and (f). The motion asserts that Plaintiff’s negligence claim fails to state sufficient facts to constitute a cause of action against Endeavor and is uncertain. Additionally, Endeavor moves to strike any request for punitive damages against it pursuant to Code of Civil Procedure section 436(a).

II. LEGAL STANDARD

a. Demurrer

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., §430.30(a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn v. Mirda, supra, 147 Cal.App.4th at p. 747.)

Code of Civil Procedure section 430.10(f) provides that a pleading is uncertain if it is ambiguous and unintelligible. (Code Civ. Proc., § 430.10(f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) “A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.” (Weil & Brown, Civil Procedure Before Trial (The Rutter Group) § 7:85.) “The objection of uncertainty does not go to the failure to allege sufficient facts.” (Brea v. McGlashan (1934) 3 Cal.App.2d 454, 459.) “It goes to the doubt as to what the pleader means by the facts alleged.” (Ibid.) “Such a demurrer should not be sustained where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet.” (People v. Lim (1941) 18 Cal.2d 872, 882.)  

b. Motion to Strike

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436(b).) The grounds for a motion to strike are that the pleading has irrelevant, false or improper matter, or has not been drawn or filed in conformity with laws. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

c. Leave to Amend

“Where the defect raised by a motion to strike or by demurrer is reasonably capable of cure, leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.” (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.)

III. DISCUSSION

a. Meet & Confer Requirement

Before filing a demurrer or motion to strike, the moving party is required to meet and confer with the party who filed the pleading for the purposes of determining whether an agreement can be reached through the filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41 & 435.5.) The Court notes that Endeavor has satisfied this requirement. (Declaration of Walker.) Walker and Plaintiff’s counsel originally stipulated to a first amended complaint being filed by February 5, 2020. Plaintiff’s counsel requested additional time to file on February 13, 2020, but Walker did not agree to extend the deadline because the case has been ongoing for over two years. Therefore, Endeavor filed this demurrer with motion to strike on February 14, 2020 when its response to Plaintiff’s complaint was due. (Declaration of Walker.)

b. Request for Judicial Notice

Endeavor requests the Court take judicial notice of: (1) Plaintiff’s February 27, 2018 complaint; (2) Plaintiff’s October 28, 2019 amendment to his complaint naming Endeavor as Doe number 2; and (3) the joint stipulation and proposed order to extend time to respond to Plaintiff’s complaint.

Pursuant to Evidence Code section 452(d), this Court may judicially notice “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.” Thus, this Court takes judicial notice of Plaintiff’s complaint and amendment thereto naming Endeavor as a defendant as records of this Court. Pursuant to Evidence Code section 452(h), this Court may take judicial notice of “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” Thus, this Court judicially notices the stipulation and proposed order between Plaintiff’s and Endeavor’s counsel because its accuracy can be ascertained from its contents.

c. Demurrer to First Cause of Action – Negligence

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of that duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

Endeavor argues that Plaintiff’s complaint fails to plead facts sufficient to state a negligence cause of action against it because there are zero facts supporting such a claim against it. Rather, Plaintiff amended the complaint to name Endeavor as Doe 2 but has failed to plead any actual facts against Endeavor.

Endeavor reasons the complaint is uncertain because Plaintiff alleges Stenger and Luxury Exotics own the Bentley operated by Garcia, Battle, and Does, and then purports to name Endeavor as one of the operating Does. This designation of Endeavor, it is argued, makes no sense because, as a talent agency, it could not have been operating the vehicle. Endeavor maintains Plaintiff later makes conclusory statements amounting to all Defendants being owners of the Bentley by alleging that each one owed a duty of care to all people to own and operate the Bentley in a reasonable manner.

Additionally, the complaint alleges all Defendants are responsible for the Bentley colliding with Plaintiff’s car and causing his injuries. Endeavor takes issue with this conclusory statement because Plaintiff does not provide any factual support for his contentions against Endeavor. Endeavor finds the complaint ambiguous and is unable to determine the facts Plaintiff alleges against it and, therefore, cannot prepare its defense.

Plaintiff opposes by arguing that he has sufficiently pled negligence against Endeavor because it had duty to reasonably own, operate, and entrust the vehicle. Plaintiff reasons it is not unfathomable for multiple owners and drivers of a vehicle to share these duties. Plaintiff contends he has pled all elements of negligence against Endeavor.

If this demurrer is sustained, Plaintiff requests leave to amend his complaint because Endeavor was not named as a defendant until discovery began and it was revealed that Endeavor was representing Garcia as his agent at the time of the accident. Endeavor was responsible for negotiating contracts on Garcia’s behalf which resulted in Garcia having use of the vehicle despite Endeavor knowing he was only 17 years old and had no driver’s license.

Here, substituting Endeavor into the Complaint as one of the Doe defendants results in Plaintiff alleging that Endeavor was operating the Bentley along with Garcia, Battle and other Does and that it “negligently and recklessly driving” the Bentley at an “extremely high and unsafe speed” and failed to provide reasonable assistance to Plaintiff after the accident. (Complaint, ¶¶ 12-13.) The Court agrees with Endeavor that these allegations are too uncertain to give Endeavor notice of its alleged misconduct. The allegations do not explain how a talent agency could be driving a car or failing to give assistance at the accident location, except through an agent or representative. There does not appear to be any allegation that can be construed as an assertion that Garcia, Battle or another Doe at the scene of the accident was acting as the agent or representative of Endeavor. In the absence of such allegations, the Complaint does not explain Endeavor’s connection to the defendant parties at the scene of the accident. Accordingly, the Court finds that the allegations that Endeavor was an operator of the vehicle do not provide reasonably clear notice of the misconduct alleged against Endeavor. If these were the only allegations against Endeavor, the Court would sustain the demurrer, but additional allegations must be tested for their sufficiency and clarity.

The Complaint also alleges that Does 1 through 25, including Endeavor who replaced Doe 2, “owned, leased, maintained, inspected, entrusted, delegated, managed, regulated, controlled and operated” the Bentley and that they owed a duty of care to act in a reasonable manner, but that their negligent breach of their duty resulted in injuries to Plaintiff. (Complaint, ¶¶ 15-19.) It is not unintelligible to allege that a talent agency owned or leased the Bentley, or that it engaged in negligent entrustment of the Bentley to Garcia or others, or that it improperly managed or delegated responsibility over hiring or driving the Bentley. Thus, the Court cannot find that there can be no intelligible allegation of negligence against Endeavor, but the allegations are such that Endeavor is left to guess at the nature of the charges against it. Moreover, it appears that Plaintiff’s offer to amend the Complaint to assert negligent entrustment might produce allegations against Endeavor that would result in a claim under the second cause of action for negligent entrustment, rather than the first claim for general negligence and negligence per se.

Therefore, the Court finds merit in Endeavor’s contentions that Plaintiff’s allegations are too uncertain to discern the nature of the claims against it. Based on Plaintiff’s offer of specific facts that would be used to amend the Complaint, the Court rules that Plaintiff should be granted leave to amend.

d. Motion to Strike

Endeavor moves to strike any references to punitive damages against it in Plaintiff’s complaint because Plaintiff fails to allege facts showing it acted with oppression, malice, or fraud. Based on the Court’s decision to sustain the demurrer as to the claims asserted against Endeavor, the Court finds that the motion to strike is moot. The Court cannot evaluate the viability of Plaintiff’s prayer for punitive damages when it has held that the underlying allegations are too unclear to provide notice of the nature of the conduct about which Plaintiff complains. Accordingly, the motion to strike must be denied as moot with respect to the operative Complaint.

CONCLUSION

For the foregoing reasons, Endeavor’s demurrer to Plaintiff’s negligence cause of action is SUSTAINED, with 20 days’ leave to amend, and its motion to strike is DENIED as moot.

Endeavor is ordered to give notice of the Court’s ruling.

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