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This case was last updated from Los Angeles County Superior Courts on 07/18/2019 at 02:31:47 (UTC).

LORETTA GRUBER VS IRWIN B FEINBERG ET AL

Case Summary

On 05/29/2018 LORETTA GRUBER filed a Personal Injury - Other Personal Injury lawsuit against IRWIN B FEINBERG. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is RANDOLPH M. HAMMOCK. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8186

  • Filing Date:

    05/29/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

RANDOLPH M. HAMMOCK

 

Party Details

Plaintiff, Petitioner and Respondent

GRUBER LORETTA

Defendants, Respondents and Appellants

GRUBER SANDRA

CONTINENTAL PRECISION STAMPING INC.

GRUBER KENNETH

FEINBERG IRWIN B.

DOES 1-20

FEINBERG MINDEL BRANDT & KLEIN LLP

GRUBER BRADFORD

GRUBER LORETTA

Not Classified By Court

STEINER & LIBO

JAMES BUFORD J.

NATIONWIDE LEGAL LLC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

GROSSMAN BRIAN M. ESQ.

GROSSMAN BRIAN MATTHEW ESQ.

Defendant, Respondent and Appellant Attorneys

AREVALO ERIC

REINHOLTZ JACK RUSSELL

MCCARTHY MICHAEL ESQ.

STEINER LEONARD SAMUEL ESQ.

 

Court Documents

COMPENDIUM OF EVIDENCE IN SUPPORT OF DEFENDANT BRADFORD GRUBERS SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (INCLUDING THE DECLARATIONS OF BRADFORD GRUBER AND

8/1/2018: COMPENDIUM OF EVIDENCE IN SUPPORT OF DEFENDANT BRADFORD GRUBERS SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (INCLUDING THE DECLARATIONS OF BRADFORD GRUBER AND

REQUEST FOR JUDICIAL NOTICE SUPPORTING DEMURRERS AND MOTION TO STRIKE BY DEFENDANT, KENNETH GRUBER, TO PLAINTIFFS COMPLAINT; NIENTORANDIJM OF POINTS AND AUTHORITIES; SUPPORTING DECLARATION

8/1/2018: REQUEST FOR JUDICIAL NOTICE SUPPORTING DEMURRERS AND MOTION TO STRIKE BY DEFENDANT, KENNETH GRUBER, TO PLAINTIFFS COMPLAINT; NIENTORANDIJM OF POINTS AND AUTHORITIES; SUPPORTING DECLARATION

APPENDIX OF EVIDENCE SUPPORTING SPECIAL MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 BY DEFENDANT, SANDRA GRUBER, TO PLAINTIFFS' COMPLAINT

8/1/2018: APPENDIX OF EVIDENCE SUPPORTING SPECIAL MOTION TO STRIKE PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 BY DEFENDANT, SANDRA GRUBER, TO PLAINTIFFS' COMPLAINT

DEFENDANT BRADFORD GRUBER'S NOTICE OF SPECIAL MOTION AND SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (INCLUDING REQUEST FOR AWARD OF ATTORNEY'S FEES AND COSTS

8/1/2018: DEFENDANT BRADFORD GRUBER'S NOTICE OF SPECIAL MOTION AND SPECIAL MOTION TO STRIKE COMPLAINT PURSUANT TO CODE OF CIVIL PROCEDURE SECTION 425.16 (INCLUDING REQUEST FOR AWARD OF ATTORNEY'S FEES AND COSTS

CIVIL DEPOSIT

9/7/2018: CIVIL DEPOSIT

Substitution of Attorney

10/15/2018: Substitution of Attorney

Memorandum of Points & Authorities

10/24/2018: Memorandum of Points & Authorities

Memorandum

10/24/2018: Memorandum

Memorandum

10/24/2018: Memorandum

Supplemental Declaration

10/24/2018: Supplemental Declaration

Notice

11/2/2018: Notice

Motion for Order

11/16/2018: Motion for Order

Appeal - Notice of Appeal/Cross Appeal Filed

12/19/2018: Appeal - Notice of Appeal/Cross Appeal Filed

Notice of Entry of Dismissal and Proof of Service

1/3/2019: Notice of Entry of Dismissal and Proof of Service

Order

2/27/2019: Order

PROOF OF SERVICE SUMMONS

6/7/2018: PROOF OF SERVICE SUMMONS

SUMMONS

5/29/2018: SUMMONS

COMPLAINT FOR MALICIOUS PROSECUTION

5/29/2018: COMPLAINT FOR MALICIOUS PROSECUTION

101 More Documents Available

 

Docket Entries

  • 06/26/2019
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Case Management Conference - Not Held - Continued - Court's Motion

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  • 06/26/2019
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Demurrer - without Motion to Strike - Not Held - Continued - Court's Motion

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  • 06/26/2019
  • Ruling-Demurrers and Motions to Strike; Filed by Clerk

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  • 06/26/2019
  • Minute Order ( (Case Management Conference; Hearing on Demurrer - without Mot...)); Filed by Clerk

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  • 06/11/2019
  • Case Management Statement; Filed by Kenneth Gruber (Defendant); Sandra Gruber (Defendant)

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  • 05/06/2019
  • at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Motion for Attorney Fees - Not Held - Taken Off Calendar by Court

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  • 05/06/2019
  • Minute Order ( (Hearing on Motion for Attorney Fees)); Filed by Clerk

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  • 05/03/2019
  • Appeal Record Delivered (APPEALS FILED 12-19-18 12-20-18 & 12-27-18); Filed by Clerk

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  • 04/04/2019
  • Appeal - Court Reporter Waiver of Transcript Deposit (Appellant)

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  • 03/28/2019
  • Appeal - Notice Court Reporter to Prepare Appeal Transcript; Filed by Clerk

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168 More Docket Entries
  • 06/07/2018
  • Proof-Service/Summons; Filed by Loretta Gruber (Plaintiff)

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  • 06/06/2018
  • Proof-Service/Summons; Filed by Loretta Gruber (Plaintiff)

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  • 06/06/2018
  • PROOF OF SERVICE OF SUMMONS

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  • 06/06/2018
  • PROOF OF SERVICE OF SUMMONS

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  • 06/06/2018
  • Proof-Service/Summons; Filed by Loretta Gruber (Plaintiff)

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  • 06/06/2018
  • Proof-Service/Summons; Filed by Loretta Gruber (Plaintiff)

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  • 06/06/2018
  • PROOF OF SERVICE OF SUMMONS

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  • 05/29/2018
  • Complaint; Filed by Loretta Gruber (Plaintiff)

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  • 05/29/2018
  • SUMMONS

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  • 05/29/2018
  • COMPLAINT FOR MALICIOUS PROSECUTION

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Tentative Rulings

Case Number: BC708186    Hearing Date: November 03, 2020    Dept: 47

Loretta Gruber v. Irwin B. Feinberg, et al.

GIVEN THE CURRENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY “LACourtConnect.” PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.

MOTION FOR AWARD OF ATTORNEYS’ FEES

MOVING PARTY: Plaintiff Loretta Gruber

RESPONDING PARTY(S): Defendants Sandra Gruber, Kenneth Gruber, and Continental Precision Stamping (2 separate oppositions)

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendants conspired to obtain a judgment against her out of community property held by Plaintiff and Defendant Bradford Gruber, who were concurrently going through a marital dissolution proceeding, to circumvent Plaintiff’s right to her share of community property assets. On appeal from the denial of Defendants’ anti-SLAPP motions to dismiss, the Court of Appeal affirmed, concluding that Plaintiff had shown that her malicious prosecution claim has minimal merit.

Plaintiff moves for attorney’s fees.

TENTATIVE RULINGS:

Plaintiff Loretta Gruber’s motion for attorney’s fees is DENIED.

Defendant Bradford Gruber’s joinder is DENIED.

DISCUSSION:

Motion for Attorney’s Fees

Evidentiary Objections

The Court declines to rule on the parties’ evidentiary objections, as they have pointed to no authority indicating that the Court is required to rule on evidentiary objections in connection with a motion for attorney’s fees, as opposed to a motion for summary judgment or an anti-SLAPP motion itself. In addition, in light of the Court’s ruling below, most of the objections are to evidence that is irrelevant to the ruling.

Joinder

Defendant Bradford Gruber seeks to join in the opposition filed by Defendants Sandra Gruber and Kenneth Gruber and the opposition filed by Defendant Continental Precision Stamping, Inc.

A notice of joinder must be filed pursuant to the same deadlines as the papers for which the joinder was made. (Seee.g.Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 719; see also Grieves v. Superior Court (1982) 157 Cal.App.3d 159, 163 n.3 [noting that “the trial court treated [defendant’s] notice of joinder as a motion”].)

Here, Defendant Bradford Gruber did not file the joinder until October 28, 2020, well past the deadline for an opposition. Accordingly, Defendant Bradford Gruber’s joinder is DENIED.

Analysis

Plaintiff moves for an award of attorney’s fees against Defendants Sandra Gruber, Kenneth Gruber, and Continental Precision Stamping, Inc., and their respective attorneys of record, in the amount of $116,098.50. Plaintiff seeks fees pursuant to CCP §§ 426.16(c) and 128.5 on the ground that Defendants’ special motion to strike was frivolous and intended to cause unnecessary delay.

CCP § 425.16(c) provides that “[i]f the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (CCP § 425.16(c)(1), bold emphasis added.)

In turn, CCP § 128.5 provides:

(a) Every trial court may order a party, the party's attorney, or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. This section also applies to judicial arbitration proceedings under Chapter 2.5 (commencing with Section 1141.10) of Title 3 of Part 3. (b) For purposes of this section:  (1) "Actions or tactics" include, but are not limited to, the making or opposing of motions or the filing and service of a complaint or cross-complaint only if the actions or tactics arise from a complaint filed, or a proceeding initiated, on or before December 31, 1994. The mere filing of a complaint without service thereof on an opposing party does not constitute "actions or tactics" for purposes of this section.  (2) "Frivolous" means (A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party. (c) Expenses pursuant to this section shall not be imposed except on notice contained in a party's moving or responding papers; or the court's own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the conduct or circumstances justifying the order. . . .

(CCP § 128.5, bold emphasis added.)

Here, Defendants’ motion was not frivolous because it was not “totally and completely without merit” or brought “for the sole purpose of harassing” Plaintiff. As to the merits, the Court found that Plaintiff’s malicious prosecution action arose from protected activity. (Gruber v. Gruber (2020) 48 Cal.App.5th 529, 536.) Plaintiff conceded as much on appeal. (Id. at 539.) This means that Defendants met their burden on the motion. Plaintiff points to no authority in her motion holding that a special motion to strike was “totally and completely without merit” where the moving party met its burden on the motion, and that is not surprising. Nor does Plaintiff offer any such authority in reply, after Defendants raised this point. Nor does Plaintiff make any showing that the motion was brought “for the sole purpose of harassing” her.

Likewise, Plaintiff has not shown that Defendants brought this motion “solely” to cause unnecessary delay. As noted, Defendants met their burden on the motion. When a lawsuit is based on protected activity, as this one is, the “anti-SLAPP statute ‘provides a procedure for weeding out, at an early stage, meritless claims arising from’ activity that is protected by the law.” (Id. at 537.) Given this legitimate purpose for the motions here, they cannot be considered to have been brought “solely” to cause unnecessary delay. Requiring Plaintiff to show that her action has minimal merit is an appropriate reason to bring a special motion to strike where, as here, the action is based on protected activity.

To support her argument regarding unnecessary delay, Plaintiff points to Defendants’ repeated requests for extensions on appeal and their filing of petitions with the California Supreme Court following the decision of the Court of Appeals. Even if these actions extended (delayed) the proceedings on appeal, however, Plaintiff has not shown that Defendants brought the motions themselves solely with an intent to cause unnecessary delay. The only case cited by Plaintiff in her motion in support of this argument, Workman v. Colichman (2019) 33 Cal.App.5th 1039, involved delays in connection with the motion itself, not any appeals or subsequent conduct. (Id. at 1056-1057.) The defendants in that case had requested multiple extensions to respond to the complaint – not on appeal from their anti-SLAPP motion. (Id. at 1056.) They requested the extensions on the ground that they were interested in mediation, but then they canceled the mediation. (Id. at 1056-1057.) They then filed the anti-SLAPP motion on the last possible day under the parties’ stipulation. (Id. at 1057.) There are no analogous facts here. Indeed, Workman involved an anti-SLAPP motion that was wholly without merit, in that the defendants had no reasonable basis to argue that their advertisements were not purely commercial speech. (Ibid.) That is not the case here. Plaintiff has pointed to no cases in which a special motion to strike in which the moving party met its burden of proof was nevertheless deemed to have been brought “solely” to cause unnecessary delay. As discussed above, the anti-SLAPP statute gives defendants who are sued based on protected activity a means to require the plaintiff to show, early in the proceedings, that the lawsuit has minimal merit. When such a motion is legitimately based on protected activity, it does not fall within the category of “unsound” or “patently frivolous” anti-SLAPP motions that the courts have cautioned against. (Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1185, 1186.)

Accordingly, Plaintiff’s motion for attorney’s fees is DENIED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: November 3, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Case Number: BC708186    Hearing Date: September 08, 2020    Dept: 47

Loretta Gruber v. Irwin B. Feinberg, et al.

 

GIVEN THE CURRENT CORONAVIRUS CRISIS, THE COURT STRONGLY ENCOURAGES REMOTE APPEARENCES BY “LACourtConnect.” PLEASE MAKE SUCH ARRANGEMENTS IF YOU WISH TO APPEAR REMOTELY AT WWW.LACOURT.ORG/LACC/. NO OTHER TYPES OF REMOTE APPEARANCES ARE AVAILABLE FOR THIS PARTICULAR COURTROOM, INCLUDING COURT CALL. IF YOU APPEAR IN PERSON AT THE HEARING, YOU WILL BE SUBJECT TO ALL SOCIAL DISTANCING RULES, INCLUDING THE WEARING OF AN APPROPRIATE FACE MASK/COVERING (ABSENT ANY EXCEPTIONAL CIRCUMSTANCES) AS CONTAINED IN THE APPLICABLE GENERAL ORDERS ISSUED BY THE PRESIDING JUDGE OF THE L.A.S.C.

DEMURRERS (3) AND MOTIONS TO STRIKE (3)

MOVING PARTY: Demurrers: (1) Defendant Continental Precision Stamping, Inc.; (2) Defendant Kenneth Gruber; (3) Defendant Sandra Gruber. Motions to Strike: (4) Defendant Continental Precision Stamping, Inc.; (5) Defendant Kenneth Gruber; (6) Defendant Sandra Gruber

RESPONDING PARTY(S): No oppositions on eCourt as of June 28, 2020.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendants conspired to obtain a judgment against her out of community property held by Plaintiff and Defendant Bradford Gruber, who were concurrently going through a marital dissolution proceeding, to circumvent Plaintiff’s right to her share of community property assets.

Defendants Continental Precision Stamping, Inc., Kenneth Gruber, and Sandra Gruber each separately demur to the complaint and move to strike portions thereof.

TENTATIVE RULING:

The separate demurrers of Defendants Continental Precision Stamping, Inc., Kenneth Gruber, and Sandra Gruber are OVERRULED.

The separate motions to strike of Defendants Continental Precision Stamping, Inc., Kenneth Gruber, and Sandra Gruber are DENIED.

These moving parties/defendants are ordered to file an Answer within 21 days.

DISCUSSION:

Demurrer – Continental Precision Stamping, Inc.

Meet and Confer

The Declaration of Attorney Marlys K. Braun reflects that the statutory meet-and-confer requirement of CCP § 430.41 was satisfied.

Request for Judicial Notice

Defendant requests judicial notice of (1) the complaint filed in Continental v. Gruber (BC619936); (2) a November 2, 2016 order in Gruber v. Gruber (BD621662); (3) the judgment entered in Continental v. Gruber (BC619936); and (4) the request for dismissal filed on June 9, 2017 in Continental v. Gruber (BC619936).

The Court notes that item (1) was already attached to the complaint in this action, and therefore there was no need to request judicial notice of it. Nevertheless, requests (1) to (4) are GRANTED per Evidence Code § 452(d) (court records), but not as to the truth of any facts or hearsay asserted in any of the documents other than the order and judgment. (Barri v. Workers’ Comp. Appeals Bd. (2018) 28 Cal.App.4th 428, 437.) Judicial notice may be taken as to the existence of the other documents, but not as to the truth of their contents. (Bach v. McNelis (1989) 207 Cal.App.3d 852, 865 [“A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.”].) A court may, however, examine the contents of a document for which judicial notice is requested “where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.)

Analysis

Defendant demurs to the sole cause of action for malicious prosecution on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain. (CCP § 430.10(e), (f).)

To prevail on a claim for malicious prosecution, a plaintiff must establish that (1) the defendant initiated or maintained a prior action “without probable cause,” (2) the defendant acted with “malice” in doing so, and (3) the prior action was terminated in the plaintiff’s favor on the merits. . . . If the plaintiff seeks to recover monetary relief, she “must also prove [(4)] damages.”

(Gruber v. Gruber (2020) 48 Cal.App.5th 529, 537, citations omitted.)

Defendant argues that Plaintiff cannot “establish” any of these elements. Of course, at the demurrer stage, whether Plaintiff can “establish” these elements is irrelevant. A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) The “question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.)

Probable Cause

Defendant argues that Plaintiff fails to plead facts “establishing” that probable cause did not exist for the filing of Continental v. Gruber.

The probable cause element is evaluated “objectively” by asking “whether any reasonable attorney would have thought the claim [legally and factually] tenable.” . . . . A prior action was not initiated without probable cause merely because it was ultimately found to lack merit; it was initiated without probable cause only if “all reasonable lawyers” would “agree” that the suit, at the time of filing, was “totally and completely without merit.” . . . . This objective assessment is necessarily made using “the facts known to the defendant” “at the time the suit was filed.” (. . . Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 594, 71 Cal.Rptr.2d 657 [tenability “depends upon” “the state of the facts” “as well as” “the state of the law”].) Although the objective question of tenability is always a “question of law” for the court to decide . . . , the question of what facts were known at the time of filing is a “question of fact” which, if disputed, is for the jury to decide and, critically, to decide before the court makes its objective determination of tenability.

(Gruber, supra, 48 Cal.App.5th at 537-538, citations omitted.)

Along the same lines as Defendant’s repeated arguments that Plaintiff has not “established” this element, Defendant also improperly argues that Plaintiff cannot establish a lack of probable cause because her allegations are “clearly untrue.” (Demurrer, at p.8.) No such thing is “clear” on the face of the complaint, and the truth of the allegations is not at issue on demurrer, other than to the extent that they may be contradicted by facts that are properly subject to judicial notice. Here, Defendant refers generally to “the RJN” to support its argument that the “joint obligation of Plaintiff and Bradford to repay the loans was documented in the Residential Leases and Promissory Notes many years before the divorce proceeding was filed in June 2015” (Demurrer, at p.8), but as noted in connection with the RJN above, the Court cannot take judicial notice of the truth of the matters asserted in documents such as Defendant’s complaint in the earlier action, and no other judicially noticed documents contain any details whatsoever about the documents mentioned. The Court may take judicial notice of the fact that Defendant asserted these documents in the previous lawsuit –indeed, that complaint is attached to the complaint in this action and may therefore be considered part of the complaint – but that does not negate Plaintiff’s allegations here.

Plaintiff alleges that Defendants “acted without probable cause in initiating the Underlying Action against Loretta in that they did not honestly, reasonably, and in good faith believe that the financial support given by the Parents to Brad and Loretta were true loans.” (Complaint ¶ 30.) Defendants may eventually be able to prove otherwise, but the fact that they alleged otherwise in the Underlying Action does not prove that the allegation was honest, reasonable, and in good faith. Thus, Plaintiff has properly alleged the “probable cause” element.

Malice

Defendant again uses an improper standard on demurrer to argue that Plaintiff cannot “establish” that Defendants acted with malice. (Demurrer, at p.10.)

The malice element looks to the “subjective intent or purpose with which the defendant acted in initiating the prior action” . . . , and is therefore a “question of fact” . . . . A party acts with “malice” when it files suit due to “ ‘ill will or some improper ulterior motive.’ ” . . . Malice requires more than proof that the party acted without probable cause.

(Gruber, supra, 48 Cal.App.5th at 538.)

Plaintiff alleges that Defendants “acted maliciously in instigating and maintaining the Underlying Action, in that they wanted vengeance against Loretta for filing for divorce.” (Complaint ¶ 32.) Plaintiff also alleges that “[t]hat vengeance would have come in the form of Loretta’s destitution, after the Parents took away her share of the marital estate by concocting – with the assistance of Feinberg and FMBK – a false claim for over $750,000.” (Ibid.)

Although the latter statement does not refer specifically to this Defendant, Continental, this Defendant also does not argue that Plaintiff has not sufficiently alleged this element against it in particular. Rather, it makes the identical argument that the parent Defendants do. Defendant also argues that this element fails “for the same reasons that Plaintiff cannot show lack of probable cause.” (Demurrer, at p.10, bold emphasis added.) As discussed above, that is not the proper standard on demurrer, and that argument also already failed in connection with the “probable cause” element, as it does with the malice element.

Prior Termination

Defendant argues that Plaintiff “fails to plead facts establishing that the civil action was favorably terminated on the merits in Plaintiff’s favor.” (Ibid.)

The prior termination element examines (1) whether the prior action was terminated in the malicious prosecution plaintiff’s favor, and (2) whether that termination “reflect[s] ... the plaintiff’s innocence of the misconduct alleged” in the prior action. . . . Where, as here, the previously suing parties voluntarily dismissed the malicious prosecution plaintiff without prejudice, the dismissal is presumed to reflect the plaintiff’s innocence. . . . This presumption is rebuttable, but whether it has been rebutted is a question of fact.

(Gruber, supra, 48 Cal.App.5th at 538.)

Defendant admits the latter point: that a “termination by dismissal . . . requires an examination of the record to determine the reasons for dismissal.” (Demurrer, at p.11.) Those reasons are not evident from the judicially noticed voluntary dismissal of Plaintiff or the judgment entered pursuant to the stipulation. If Defendant intends to try to rebut the presumption that this dismissal reflects Plaintiff’s innocence, Defendant may try to do so at trial or on summary judgment, but Defendant may not do so at the demurrer stage. What is clear from the Complaint and the judicially noticed documents is that the underlying action was dismissed in Plaintiff’s favor. (Complaint ¶ 22; Defendant’s RJN Exhs. C, D.) Thus, the complaint and documents subject to judicial notice show that Plaintiff has sufficiently alleged the “prior termination” element.

Damages

Defendant complains that Plaintiff only alleges damages “in an amount according to proof.” (Complaint ¶ 33.) This type of prayer for damages, however, is problematic only in the context of default judgment, where it “passes muster . . . only if a specific amount of damages is alleged in the body of the complaint.” (Becker v. S.P.V. Construction Co. (27 Cal.3d 489, 494.) Otherwise, there is no requirement to allege a specific amount of damages. (Furia v. Helm (2003) 111 Cal.App.4th 945, 957 [explaining that a “specific dollar amount is necessary only when a default judgment is to be entered”].)

Defendant also argues that Plaintiff “does not allege that she retained counsel or incurred any attorney’s fees or costs in the civil action.” (Demurrer, at p.12.) Defendant does not point to any requirement that Plaintiff do so. In fact, that sounds like an ideal topic for discovery.

Thus, Plaintiff has sufficiently alleged the “damages” element.

Conclusion

Because Plaintiff has alleged facts sufficient to constitute a cause of action against the demurring Defendant, the demurrer on that basis is OVERRULED.

Uncertainty

The demurrer on the basis of uncertainty is also OVERRULED. Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply only where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly's of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) That is not the case here. Moreover, a failure to specify what aspects of a complaint are uncertain generally results in a demurrer being overruled as to uncertainty. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809, overruled on other grounds by Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300, 328.) Here, Defendant did not even make an argument as to uncertainty, let alone specify any particular aspects of the complaint that are so uncertain Defendant would not reasonably be able to answer.

Accordingly, the demurrer is OVERRULED in its entirety.

Demurrers: Kenneth Gruber and Sandra Gruber

Defendants Kenneth Gruber and Sandra Gruber rely on the same arguments as Defendant Continental in support of their demurrers.

For the reasons discussed regarding Continental’s demurrer, the demurrers of Kenneth Gruber and Sandra Gruber are also OVERRULED.

Motion To Strike: Continental Precision Stamping, Inc.

Meet and Confer

The Declaration of Attorney Marlys K. Braun reflects that the statutory meet-and-confer requirement of CCP § 435.5 was satisfied.

Analysis

Defendant moves to strike Plaintiff’s prayer for punitive damages and related allegations.

“The proof of malice to sustain a malicious prosecution action bears substantial similarity to the proof of malice necessary to support a punitive damage award.” (George F. Hillenbrand, Inc. v. Insurance Co. of North America (2002) 104 Cal.App.4th 784, 814.) “The most significant difference is the quantum of proof.” (Ibid.) Of course, the quantum of proof is not relevant at the demurrer stage.

For punitive damages purposes, “Malice” is defined as conduct “intended to cause injury to the plaintiff or despicable conduct . . . carried on . . . with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294(c)(1).)

Here, Plaintiff does not merely allege that Defendants acted with malice in a conclusory way. Plaintiff alleges specifically that Defendants intended to bring about “Loretta’s destitution” as an act of “vengeance,” which they attempted to accomplish by filing the Underlying Action in an attempt to take “away her share of the marital estate by concocting . . . a false claim for over $750,000.” (Complaint ¶ 32.) In other words, Plaintiff has alleged that Defendants intended to cause her injury and did so with a willful disregard of her rights.

Accordingly, the motion to strike is DENIED.

Motions to Strike: Kenneth Gruber and Sandra Gruber

Defendants Kenneth Gruber and Sandra Gruber rely on the same arguments as Defendant Continental in support of their motions to strike.

For the reasons discussed regarding Continental’s motion to strike, the motions to strike of Kenneth Gruber and Sandra Gruber are also DENIED.

Moving parties to give notice, unless waived.

IT IS SO ORDERED.

Dated: September 8, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Case Number: BC708186    Hearing Date: June 30, 2020    Dept: 47

Loretta Gruber v. Irwin B. Feinberg, et al.

 

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DEMURRERS AND MOTIONS TO STRIKE

MOVING PARTY: Demurrers: (1) Defendant Continental Precision Stamping, Inc.; (2) Defendant Kenneth Gruber; (3) Defendant Sandra Gruber. Motions to Strike: (4) Defendant Continental Precision Stamping, Inc.; (5) Defendant Kenneth Gruber; (6) Defendant Sandra Gruber

RESPONDING PARTY(S): No oppositions on eCourt as of June 28, 2020.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendants conspired to obtain a judgment against her out of community property held by Plaintiff and Defendant Bradford Gruber, who were concurrently going through a marital dissolution proceeding, to circumvent Plaintiff’s right to her share of community property assets.

Defendants Continental Precision Stamping, Inc., Kenneth Gruber, and Sandra Gruber each separately demur to the complaint and move to strike portions thereof.

TENTATIVE RULING:

Assuming this Court has the requisite jurisdiction at this time to rule on these pending matters, given the fact that the remittitur has not yet been returned to this Court by the Court of Appeal, the tentative ruling is as follows:

The separate demurrers of Defendants Continental Precision Stamping, Inc., Kenneth Gruber, and Sandra Gruber are OVERRULED.

The separate motions to strike of Defendants Continental Precision Stamping, Inc., Kenneth Gruber, and Sandra Gruber are DENIED.

All defendants are to file an Answer to the Complaint within 20 days.

If this Court does not have the required jurisdictional power to hear these matters at this time, the hearing shall be continued to September 8, 2020 at 10:00 a.m. NO FURTHER BRIEFING IS ALLOWED ON THESE PARTICULAR MATTERS.

DISCUSSION:

Demurrer – Continental Precision Stamping, Inc.

Meet and Confer

The Declaration of Attorney Marlys K. Braun reflects that the statutory meet-and-confer requirement of CCP § 430.41 was satisfied.

Request for Judicial Notice

Defendant requests judicial notice of (1) the complaint filed in Continental v. Gruber (BC619936); (2) a November 2, 2016 order in Gruber v. Gruber (BD621662); (3) the judgment entered in Continental v. Gruber (BC619936); and (4) the request for dismissal filed on June 9, 2017 in Continental v. Gruber (BC619936).

The Court notes that item (1) was already attached to the complaint in this action, and therefore there was no need to request judicial notice of it. Nevertheless, requests (1) to (4) are GRANTED per Evidence Code § 452(d) (court records), but not as to the truth of any facts or hearsay asserted in any of the documents other than the order and judgment. (Barri v. Workers’ Comp. Appeals Bd. (2018) 28 Cal.App.4th 428, 437.) Judicial notice may be taken as to the existence of the other documents, but not as to the truth of their contents. (Bach v. McNelis (1989) 207 Cal.App.3d 852, 865 [“A court may take judicial notice of the existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments.”].) A court may, however, examine the contents of a document for which judicial notice is requested “where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed.” (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.)

Analysis

Defendant demurs to the sole cause of action for malicious prosecution on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain. (CCP § 430.10(e), (f).)

To prevail on a claim for malicious prosecution, a plaintiff must establish that (1) the defendant initiated or maintained a prior action “without probable cause,” (2) the defendant acted with “malice” in doing so, and (3) the prior action was terminated in the plaintiff’s favor on the merits. . . . If the plaintiff seeks to recover monetary relief, she “must also prove [(4)] damages.”

(Gruber v. Gruber (2020) 48 Cal.App.5th 529, 537, citations omitted.)[1]

Defendant argues that Plaintiff cannot “establish” any of these elements. Of course, at the demurrer stage, whether Plaintiff can “establish” these elements is irrelevant. A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) The “question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.)

Probable Cause

Defendant argues that Plaintiff fails to plead facts “establishing” that probable cause did not exist for the filing of Continental v. Gruber.

The probable cause element is evaluated “objectively” by asking “whether any reasonable attorney would have thought the claim [legally and factually] tenable.” . . . . A prior action was not initiated without probable cause merely because it was ultimately found to lack merit; it was initiated without probable cause only if “all reasonable lawyers” would “agree” that the suit, at the time of filing, was “totally and completely without merit.” . . . . This objective assessment is necessarily made using “the facts known to the defendant” “at the time the suit was filed.” (. . . Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 594, 71 Cal.Rptr.2d 657 [tenability “depends upon” “the state of the facts” “as well as” “the state of the law”].) Although the objective question of tenability is always a “question of law” for the court to decide . . . , the question of what facts were known at the time of filing is a “question of fact” which, if disputed, is for the jury to decide and, critically, to decide before the court makes its objective determination of tenability.

(Gruber, supra, 48 Cal.App.5th at 537-538, citations omitted.)

Along the same lines as Defendant’s repeated arguments that Plaintiff has not “established” this element, Defendant also improperly argues that Plaintiff cannot establish a lack of probable cause because her allegations are “clearly untrue.” (Demurrer, at p.8.) No such thing is “clear” on the face of the complaint, and the truth of the allegations is not at issue on demurrer, other than to the extent that they may be contradicted by facts that are properly subject to judicial notice. Here, Defendant refers generally to “the RJN” to support its argument that the “joint obligation of Plaintiff and Bradford to repay the loans was documented in the Residential Leases and Promissory Notes many years before the divorce proceeding was filed in June 2015” (Demurrer, at p.8), but as noted in connection with the RJN above, the Court cannot take judicial notice of the truth of the matters asserted in documents such as Defendant’s complaint in the earlier action, and no other judicially noticed documents contain any details whatsoever about the documents mentioned. The Court may take judicial notice of the fact that Defendant asserted these documents in the previous lawsuit –indeed, that complaint is attached to the complaint in this action and may therefore be considered part of the complaint – but that does not negate Plaintiff’s allegations here.

Plaintiff alleges that Defendants “acted without probable cause in initiating the Underlying Action against Loretta in that they did not honestly, reasonably, and in good faith believe that the financial support given by the Parents to Brad and Loretta were true loans.” (Complaint ¶ 30.) Defendants may eventually be able to prove otherwise, but the fact that they alleged otherwise in the Underlying Action does not prove that the allegation was honest, reasonable, and in good faith. Thus, Plaintiff has properly alleged the “probable cause” element.

Malice

Defendant again uses an improper standard on demurrer to argue that Plaintiff cannot “establish” that Defendants acted with malice. (Demurrer, at p.10.)

The malice element looks to the “subjective intent or purpose with which the defendant acted in initiating the prior action” . . . , and is therefore a “question of fact” . . . . A party acts with “malice” when it files suit due to “ ‘ill will or some improper ulterior motive.’ ” . . . Malice requires more than proof that the party acted without probable cause.

(Gruber, supra, 48 Cal.App.5th at 538.)

Plaintiff alleges that Defendants “acted maliciously in instigating and maintaining the Underlying Action, in that they wanted vengeance against Loretta for filing for divorce.” (Complaint ¶ 32.) Plaintiff also alleges that “[t]hat vengeance would have come in the form of Loretta’s destitution, after the Parents took away her share of the marital estate by concocting – with the assistance of Feinberg and FMBK – a false claim for over $750,000.” (Ibid.)

Although the latter statement does not refer specifically to this Defendant, Continental, this Defendant also does not argue that Plaintiff has not sufficiently alleged this element against it in particular. Rather, it makes the identical argument that the parent Defendants do. Defendant also argues that this element fails “for the same reasons that Plaintiff cannot show lack of probable cause.” (Demurrer, at p.10, bold emphasis added.) As discussed above, that is not the proper standard on demurrer, and that argument also already failed in connection with the “probable cause” element, as it does with the malice element.

Prior Termination

Defendant argues that Plaintiff “fails to plead facts establishing that the civil action was favorably terminated on the merits in Plaintiff’s favor.” (Ibid.)

The prior termination element examines (1) whether the prior action was terminated in the malicious prosecution plaintiff’s favor, and (2) whether that termination “reflect[s] ... the plaintiff’s innocence of the misconduct alleged” in the prior action. . . . Where, as here, the previously suing parties voluntarily dismissed the malicious prosecution plaintiff without prejudice, the dismissal is presumed to reflect the plaintiff’s innocence. . . . This presumption is rebuttable, but whether it has been rebutted is a question of fact.

(Gruber, supra, 48 Cal.App.5th at 538.)

Defendant admits the latter point: that a “termination by dismissal . . . requires an examination of the record to determine the reasons for dismissal.” (Demurrer, at p.11.) Those reasons are not evident from the judicially noticed voluntary dismissal of Plaintiff or the judgment entered pursuant to the stipulation. If Defendant intends to try to rebut the presumption that this dismissal reflects Plaintiff’s innocence, Defendant may try to do so at trial or on summary judgment, but Defendant may not do so at the demurrer stage. What is clear from the Complaint and the judicially noticed documents is that the underlying action was dismissed in Plaintiff’s favor. (Complaint ¶ 22; Defendant’s RJN Exhs. C, D.) Thus, the complaint and documents subject to judicial notice show that Plaintiff has sufficiently alleged the “prior termination” element.

Damages

Defendant complains that Plaintiff only alleges damages “in an amount according to proof.” (Complaint ¶ 33.) This type of prayer for damages, however, is problematic only in the context of default judgment, where it “passes muster . . . only if a specific amount of damages is alleged in the body of the complaint.” (Becker v. S.P.V. Construction Co. (27 Cal.3d 489, 494.) Otherwise, there is no requirement to allege a specific amount of damages. (Furia v. Helm (2003) 111 Cal.App.4th 945, 957 [explaining that a “specific dollar amount is necessary only when a default judgment is to be entered”].)

Defendant also argues that Plaintiff “does not allege that she retained counsel or incurred any attorney’s fees or costs in the civil action.” (Demurrer, at p.12.) Defendant does not point to any requirement that Plaintiff do so. In fact, that sounds like an ideal topic for discovery.

Thus, Plaintiff has sufficiently alleged the “damages” element.

Conclusion

Because Plaintiff has alleged facts sufficient to constitute a cause of action against the demurring Defendant, the demurrer on that basis is OVERRULED.

Uncertainty

The demurrer on the basis of uncertainty is also OVERRULED. Demurrers for uncertainty are strictly construed, because discovery can be used for clarification, and apply only where defendants cannot reasonably determine what issues or claims are stated. (Khoury v. Maly's of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) That is not the case here. Moreover, a failure to specify what aspects of a complaint are uncertain generally results in a demurrer being overruled as to uncertainty. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809, overruled on other grounds by Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300, 328.) Here, Defendant did not even make an argument as to uncertainty, let alone specify any particular aspects of the complaint that are so uncertain Defendant would not reasonably be able to answer.

Accordingly, the demurrer is OVERRULED in its entirety.

Demurrers: Kenneth Gruber and Sandra Gruber

Defendants Kenneth Gruber and Sandra Gruber rely on the same arguments as Defendant Continental in support of their demurrers.

For the reasons discussed regarding Continental’s demurrer, the demurrers of Kenneth Gruber and Sandra Gruber are also OVERRULED.

Motion To Strike: Continental Precision Stamping, Inc.

Meet and Confer

The Declaration of Attorney Marlys K. Braun reflects that the statutory meet-and-confer requirement of CCP § 435.5 was satisfied.

Analysis

Defendant moves to strike Plaintiff’s prayer for punitive damages and related allegations.

“The proof of malice to sustain a malicious prosecution action bears substantial similarity to the proof of malice necessary to support a punitive damage award.” (George F. Hillenbrand, Inc. v. Insurance Co. of North America (2002) 104 Cal.App.4th 784, 814.) “The most significant difference is the quantum of proof.” (Ibid.) Of course, the quantum of proof is not relevant at the demurrer stage.

For punitive damages purposes, “Malice” is defined as conduct “intended to cause injury to the plaintiff or despicable conduct . . . carried on . . . with a willful and conscious disregard of the rights or safety of others.” (Civ. Code § 3294(c)(1).)

Here, Plaintiff does not merely allege that Defendants acted with malice in a conclusory way. Plaintiff alleges specifically that Defendants intended to bring about “Loretta’s destitution” as an act of “vengeance,” which they attempted to accomplish by filing the Underlying Action in an attempt to take “away her share of the marital estate by concocting . . . a false claim for over $750,000.” (Complaint ¶ 32.) In other words, Plaintiff has alleged that Defendants intended to cause her injury and did so with a willful disregard of her rights.

Accordingly, the motion to strike is DENIED.

Motions to Strike: Kenneth Gruber and Sandra Gruber

Defendants Kenneth Gruber and Sandra Gruber rely on the same arguments as Defendant Continental in support of their motions to strike.

For the reasons discussed regarding Continental’s motion to strike, the motions to strike of Kenneth Gruber and Sandra Gruber are also DENIED.

Moving parties to give notice, unless waived.

IT IS SO ORDERED.

Dated: June 30, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.


[1] How often does a trial court get to cite, as a published opinion, the actual case currently pending before it?

Case Number: BC708186    Hearing Date: December 31, 2019    Dept: 47

 

DEMURRERS AND MOTIONS TO STRIKE

MOVING PARTY: Defendant Sandra Gruber; Defendant Kenneth Gruber; Defendant Continental Precision Stamping, Inc.

RESPONDING PARTY(S): No oppositions filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Plaintiff alleges that Defendants conspired to obtain a judgment against Plaintiff out of community property held by Plaintiff and Defendant, who were concurrently going through a marital dissolution proceeding, to circumvent Plaintiff’s right to her share of community property assets.

Defendant Sandra Gruber; Defendant Kenneth Gruber; Defendant Continental Precision Stamping, Inc. each separately demur to the Complaint and move to strike portions thereof.

TENTATIVE RULING:

The hearing on Defendant Sandra Gruber; Defendant Kenneth Gruber; Defendant Continental Precision Stamping, Inc.’s demurrers to the Complaint and motions to strike portions thereof is CONTINUED to June 30, 2020. Any oppositions or replies per CCP off the new hearing date.

On October 31, 2018, the Court denied the anti-SLAPP special motions to strike brought by Defendants Sandra Gruger, Kenneth Gruber and Continental Precision Stamping, Inc. Each of those Defendants has filed a notice of appeal from the Court’s order, and the parties have filed a joint statement indicating that the appeals are still pending. Trial court proceedings on the merits are automatically stayed pending an appeal from the denial of an anti-SLAPP motion. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 191.)

Defendants to give notice, unless waived.

IT IS SO ORDERED.

Dated: December 31, 2019 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org

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