This case was last updated from Los Angeles County Superior Courts on 12/10/2019 at 13:18:11 (UTC).

ROBERT JOHN ARCAND VS FRESH AIR ENVIRONMENTAL SERVICES INC E

Case Summary

On 03/08/2018 ROBERT JOHN ARCAND filed a Personal Injury - Motor Vehicle lawsuit against FRESH AIR ENVIRONMENTAL SERVICES INC E. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are GEORGINA T. RIZK, STEPHEN I. GOORVITCH and KRISTIN S. ESCALANTE. The case status is Other.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****7281

  • Filing Date:

    03/08/2018

  • Case Status:

    Other

  • Case Type:

    Personal Injury - Motor Vehicle

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

GEORGINA T. RIZK

STEPHEN I. GOORVITCH

KRISTIN S. ESCALANTE

 

Party Details

Plaintiff and Petitioner

ARCAND ROBERT JOHN

Defendants and Respondents

DOES 1-25

RODRIGUEZ SERGIO JR.

FRESH AIR ENVIRONMENTAL SERVICES INC.

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

TABONE DEREK L. ESQ.

TABONE DEREK LEONARD ESQ.

Defendant and Respondent Attorneys

MARK R. WEINER & ASSOCIATES

DIAMOND PETER KEVIN ESQ.

 

Court Documents

Minute Order - MINUTE ORDER (- HEARING ON MOTION TO CONSOLIDATE RELATED CASE NOS. BC685630...)

12/9/2019: Minute Order - MINUTE ORDER (- HEARING ON MOTION TO CONSOLIDATE RELATED CASE NOS. BC685630...)

Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

11/25/2019: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)

Notice - NOTICE NOTICE OF RULING

11/27/2019: Notice - NOTICE NOTICE OF RULING

Notice - NOTICE NOTICE OF MOTION FOR ORDER CONSOLIDATING ACTIONS

11/5/2019: Notice - NOTICE NOTICE OF MOTION FOR ORDER CONSOLIDATING ACTIONS

Notice - NOTICE NOTICE THAT MOTIONS FOR ORDER COMPELLING RESPONSES TO (1) SUPPLEMENTAL INTERROGATORIES; (2) SUPPLEMENTAL DEMAND FOR INSPECTION AND PRODUCTION HAVE BEEN TAKEN OFF CALENDAR

10/3/2019: Notice - NOTICE NOTICE THAT MOTIONS FOR ORDER COMPELLING RESPONSES TO (1) SUPPLEMENTAL INTERROGATORIES; (2) SUPPLEMENTAL DEMAND FOR INSPECTION AND PRODUCTION HAVE BEEN TAKEN OFF CALENDAR

Motion to Compel - MOTION TO COMPEL NOTICE OF MOTION FOR ORDER COMPELLING RESPONSES TO SUPPLEMENTAL DEMAND FOR INSPECTION AND PRODUCTION OF DOCUMENTS

9/25/2019: Motion to Compel - MOTION TO COMPEL NOTICE OF MOTION FOR ORDER COMPELLING RESPONSES TO SUPPLEMENTAL DEMAND FOR INSPECTION AND PRODUCTION OF DOCUMENTS

Motion to Compel - MOTION TO COMPEL NOTICE OF MOTION FOR ORDER COMPELLING RESPONSES TO SUPPLEMENTAL INTERROGATORIES

9/25/2019: Motion to Compel - MOTION TO COMPEL NOTICE OF MOTION FOR ORDER COMPELLING RESPONSES TO SUPPLEMENTAL INTERROGATORIES

[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO

7/5/2019: [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Person - [PROPOSED ORDER] AND STIPULATION TO CONTINUE TRIAL, FSC (AND RELATED MOTION/DISCOVERY DATES) PERSO

Notice - NOTICE CHANGE OF EMAIL ADDRESS

6/27/2019: Notice - NOTICE CHANGE OF EMAIL ADDRESS

Minute Order - MINUTE ORDER (COURT ORDER RE: COURT ORDER PURSUANT TO NOTICE OF RELATED CA...)

5/20/2019: Minute Order - MINUTE ORDER (COURT ORDER RE: COURT ORDER PURSUANT TO NOTICE OF RELATED CA...)

Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (COURT ORDER RE: COURT ORDER PURSUANT TO NOTICE OF RELATED CA...) OF 05/20/2019

5/20/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR MINUTE ORDER (COURT ORDER RE: COURT ORDER PURSUANT TO NOTICE OF RELATED CA...) OF 05/20/2019

ANSWER TO COMPLAINT ON BEHALF OF DEFENDANTS FRESH AIR ENVIRONMENTAL SERVICES, INC. AND SERGIO RODRIGUEZ, JR.; DEMAND FOR TRIAL BY JURY

5/31/2018: ANSWER TO COMPLAINT ON BEHALF OF DEFENDANTS FRESH AIR ENVIRONMENTAL SERVICES, INC. AND SERGIO RODRIGUEZ, JR.; DEMAND FOR TRIAL BY JURY

CIVIL DEPOSIT -

5/31/2018: CIVIL DEPOSIT -

SUMMONS -

3/8/2018: SUMMONS -

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -

3/8/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES) -

3 More Documents Available

 

Docket Entries

  • 12/09/2019
  • Docketat 1:30 PM in Department 2, Kristin S. Escalante, Presiding; Hearing on Motion to Consolidate (Related Case Nos. BC685630, BC697281, and BC716871) - Held - Motion Granted

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  • 12/09/2019
  • Docketat 1:30 PM in Department 2, Kristin S. Escalante, Presiding; Final Status Conference - Not Held - Vacated by Court

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  • 12/09/2019
  • DocketMinute Order ( (- Hearing on Motion to Consolidate Related Case Nos. BC685630...)); Filed by Clerk

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  • 11/27/2019
  • DocketNotice (Notice of Ruling); Filed by Fresh Air Environmental Services, Inc. (Defendant)

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  • 11/25/2019
  • Docketat 10:00 AM in Department 2, Kristin S. Escalante, Presiding; Final Status Conference - Held - Continued

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  • 11/25/2019
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 11/05/2019
  • DocketMotion to Consolidate (Related Cases BC685630, BC697281, and BC716871 (Defendants owe $60.00 Motion fee)); Filed by Fresh Air Environmental Services, Inc. (Defendant); Sergio Jr. Rodriguez (Defendant)

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  • 10/29/2019
  • Docketat 1:30 PM in Department 2, Kristin S. Escalante, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Taken Off Calendar by Party

    Read MoreRead Less
  • 10/29/2019
  • Docketat 1:30 PM in Department 2, Kristin S. Escalante, Presiding; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Taken Off Calendar by Party

    Read MoreRead Less
  • 10/03/2019
  • DocketNotice (NOTICE THAT MOTIONS FOR ORDER COMPELLING RESPONSES TO (1) SUPPLEMENTAL INTERROGATORIES; (2) SUPPLEMENTAL DEMAND FOR INSPECTION AND PRODUCTION HAVE BEEN TAKEN OFF CALENDAR); Filed by Fresh Air Environmental Services, Inc. (Defendant); Sergio Jr. Rodriguez (Defendant)

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8 More Docket Entries
  • 05/20/2019
  • Docketat 12:30 PM in Department 2, Kristin S. Escalante, Presiding; Court Order

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  • 05/20/2019
  • DocketCertificate of Mailing for (Minute Order (Court Order Re: Court Order Pursuant to Notice of Related Ca...) of 05/20/2019); Filed by Clerk

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  • 05/20/2019
  • DocketMinute Order ( (Court Order Re: Court Order Pursuant to Notice of Related Ca...)); Filed by Clerk

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  • 05/31/2018
  • DocketReceipt; Filed by Sergio Jr. Rodriguez (Defendant)

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  • 05/31/2018
  • DocketANSWER TO COMPLAINT ON BEHALF OF DEFENDANTS FRESH AIR ENVIRONMENTAL SERVICES, INC. AND SERGIO RODRIGUEZ, JR.; DEMAND FOR TRIAL BY JURY

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  • 05/31/2018
  • DocketCIVIL DEPOSIT

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  • 05/31/2018
  • DocketAnswer; Filed by Fresh Air Environmental Services, Inc. (Defendant); Sergio Jr. Rodriguez (Defendant)

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  • 03/08/2018
  • DocketComplaint; Filed by Robert John Arcand (Plaintiff)

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  • 03/08/2018
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

    Read MoreRead Less
  • 03/08/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC697281    Hearing Date: July 28, 2020    Dept: SWE

ROBERT JOHN ARCAND vs. FRESH AIR ENVIRONMENTAL SERVICES, INC. ET AL BC697281

Robert John Arcand’s motion for new trial was heard on 7.28.20 in Department SWE at the Torrance Courthouse.

The motion for new trial is based on the following grounds:

  1. Irregularity of the proceedings CCP §657 (1);

  2. In adequate damages CCP §657(5);

  3. In sufficiency of the evidence to justify the judgment CCP §657(6);

  4. Error in law occurring at trial and excepted to the party making the application. CCP §657(7).

DISCUSSION

Plaintiff explains that the court excluded all pictures of the damage to the vehicles involved in this accident. Contrary to plaintiff’s assertion, some of the photographs were admitted into evidence. This was done to avoid jury speculation. Most of the photographs of said vehicle damage were excluded because plaintiff’s basis for offering them to the jury was for the jury to use the photographs to determine the extent of the injury. Plaintiff had no witness capable of testifying as an accident reconstruction expert or as a biomechanical expert. Asking the jury to use the photographs for plaintiff’s intended purpose was inappropriate not only because plaintiff was asking the jurors to speculate as to the cause, nature and extent of injury but this is an admitted liability case.

Plaintiff contends that a non-treating chiropractor was entitled to tell the jurors the diagnosis of an absentee chiropractor arguing that the chiropractic records were business records. While the chiropractic records of an absent chiropractor are business records for which a foundation was laid, the diagnosis in that record is a conclusion and not an act, condition or event within the meaning of the business record exception to the hearsay restriction. Other than the diagnosis the plaintiff’s non-treating expert witness chiropractor was able to testify as to the chiropractic treatment plaintiff received according to the treating chiropractor’s record.

It is noted that plaintiff’s counsel told the jury in opening statement that plaintiffs vehicle sustained frame damage from this incident although there was no such evidence presented by plaintiff or defendant in the case. Plaintiff’s counsel also stated in closing argument that there was frame damage and that the axel was broken when no such evidence was presented.

Plaintiff argues that the court excluded the MRI report. The MRI report is hearsay although both the plaintiff and defendant’s medical witnesses testified regarding the orthopedic significance or lack thereof to plaintiff.

This motion is presented as vague conclusions and omits underlying factual evidence.

WRITTEN OPPOSITION TO MOTION FOR NEW TRIAL

Defendants argue that plaintiff is incorrect in his contention of a violation of People v. Sanchez (2016) 63 Cal 4th 665. Sanchez does apply to civil cases and properly excluded plaintiff from introducing case specific hearsay through expert testimony re the diagnosis of another doctor and the contents of an MRI report. Plaintiff’s expert had not been involved with the preparation of either report. Conservatorship of K.W. (2017) 13 Cal. App. 5th 1274. Plaintiff cites no valid authority to support the contention that the Sanchez case does not apply to civil actions or that it was erroneously applied in this case. Plaintiff’s medical expert, Dr. Keith, never treated plaintiff and only examined him weeks prior to trial and then only for the sole purpose of prognosticating about future surgeries and treatment. However, it was undisputed that plaintiff had not sought or needed medical treatment for two and one-half years prior to trial.

Plaintiff argues error in the exclusion of most of the photographs of the physical damage to plaintiff’s vehicle and the vehicle as it was disassembled. Note that plaintiff did not produce an expert witness at trial on the issue of damages to the vehicle or the cost of repair. Plaintiff’s purpose in offering the photographs was to have the jury speculate that the unauthenticated photographs support plaintiff’s contention that plaintiffs vehicle suffered a broken axle and frame damage along with the cost of repairs, all of which was hearsay given the absence of an expert witness. Plaintiff also sought to have the photographs admitted into evidence to establish the nature and extent of plaintiff’s claimed physical injuries, without any expert witness testifying as to the biomechanical circumstances of the accident or as to accident reconstruction.

Contrary to plaintiff’s contention, photographs of the damage to plaintiff’s vehicle were admitted into evidence merely to establish that there was damage. However, the remaining photographs were not only lacking in relevance and probity, it was without evidentiary will foundation and were intended to have the jury speculate in the place and stead of an absentee expert.

Even if the court’s evidentiary ruling were, in part, erroneous, there was no prejudice given the state of the record.

PLAINTIFF’S REPLY

Plaintiff challenges the application of People v Sanchez (2016) 63 Cal.4th 665 to exclude certain portions of plaintiff’s medical evidence, citing People v Crawford (2004) 541 U.S. 36. However, Crawford did not involve an expert, it was merely a testimonial statement of the wife as to whom defendant had declared a privilege. It is noted that plaintiff’s expert was permitted to testify as to the medical records which met the business records exception.

As to the MRI report at issue with Arcand, that clearly is hearsay to plaintiff’s expert who did not order it, did not treat plaintiff, did not prepare either of the two medical reports, was not present when the physician examined plaintiff or when the chiropractor examined plaintiff. The MRI report is a conclusion and diagnosis of a third party and constitutes testimonial hearsay within the meaning of Sanchez. As such, those records do not constitute an act, condition or event.

The medical reports themselves were established as business records but the business records exception does not permit plaintiff’s expert to testify as to the diagnosis of either the former chiropractor or the physician, neither of which is an act, condition or event.

FINDINGS:

The undisputed evidence in this case showed that plaintiff had a history of orthopedic issues in his low back and neck. Although the accident occurred on August 8, 2016, plaintiff testified that he worked continuously for almost seven months until February 27, 2017. Plaintiff worked as a high crane operator towering 10 to 20 stories above the construction site. His job involved sitting in a position looking down for 10 to 12 hours a day. According to the evidence plaintiff never takes vacations or time off and did not take any time off from work after this accident. The evidence showed that plaintiff, after an initial round of medical treatment, had not sought or received any medical treatment for 2 ½ years before the trial date but that one week before trial was directed to a chiropractor not for treatment but for the expert opinion that plaintiff needs low back fusion and epidermal injections. The defense presented evidence of prior history of orthopedic spine issues of advanced arthritis.

Against the foregoing background, plaintiff presented medicals of $46,000.00, no lost earnings, and future medicals of $70,000.00. Plaintiff argued to the jury for general damages of $80,000.00. Plaintiff argues for a total verdict of $196,000.00. The jury returned a verdict of 17,566.00 consisting of $9,566.00 for past medicals (12:0 jury polling) and $8,000.00 for past pain and suffering (12:0 jury polling). Past wage loss, future medicals and future pain and suffering were all denied by the jury, essentially polling 12:0 for each finding of no damages except for future damages of zero dollars which returned polling numbers of 11:1.

It is instructive that the jury deliberated for essentially one day before returning a verdict of a total of $17,566.00 based on an admitted liability concession. Implicit in the verdict is that the jurors believed that virtually all of plaintiff’s medicals related to his prior orthopedic condition exacerbated by the nature of his work, finding only minor soft tissue injury with proper chiropractic treatment for only 1-2 months at most.

The defendant’s medical expert having conceded that plaintiff was injured but that the injury was no where near the extent claimed. Based on the evidence presented at trial, including plaintiff’s own testimony, the outcome of the trial was fair.

Based on the foregoing, the court finds that there was no irregularity of the proceedings CCP §657 (1); damages were not inadequate CCP §657(5); damages were not insufficient to justify the judgment CCP §657(6) and there was no error in law excepted to by the party making the application. CCP §657(7). The motion for NEW TRIAL is respectfully denied.

Attorney Derek L. Tabone

Law Offices of Derek L. Tabone

6454 Van Nuys Blvd, Suite 210

Van Nuys, CA 91401

Attorney Dustin J. Lee

c/o Law Offices of Mark R. Weiner & Associates

655 North Central Avenue, 12th Floor

Glendale, CA 91203-1434

Case Number: BC697281    Hearing Date: July 13, 2020    Dept: SWE

ROBERT JOHN ARCAND V FRESH AIR ENVIRONMENTAL SERVICES, INC. ET AL BC697281

This personal injury action arose from a freeway traffic collision on August 8, 2016 during daylight hours. At trial defendant admitted negligence and challenged only the nature and extent of the alleged damages.

PLAINTIFF’S MOTION TO TAX COSTS

Motion Heard 7.13.20 in Dept. SWE, Torrance

Plaintiff’s motion to tax costs targets $11,075.00 in expert witness fees and $1,900.00 for exhibits and enlargements for a total of $12,975.00. Plaintiff contends these costs are either not recoverable or are discretionary and should be taxed. Defendants’ statutory Offer To Compromise pursuant to CCP §998 was made in the amount of $55,001.00 plus costs, one month before trial. Plaintiff rejected the offer and failed to obtain a greater amount at trial.

Expert witness fees are discretionary pursuant to CCP §998 (c) (1). Plaintiff argues that only post-offer fees can be recovered and that such fees must be actually incurred and reasonably necessary in either or both trial and preparation for trial. Plaintiff does not argue that the §998 offer was made in bad faith or that it was a token offer.

Instead, it is contended there is no indication that defendant’s medical expert Dr. Liberman performed his services for the 24+ hours he charged for the application of his expertise. Defendants attach Exhibit C which are invoices from Dr. Liberman supporting his charges as incurred after the §998 offer. In plaintiff’s motion to tax, as filed, there is no factual evidence only conclusions that Dr. Liberman did not actually incur the fees charged as indicated.

Plaintiff argues Dr. Lieberman charged $4,500.00 for his time testifying although he appeared for less than 2 hours at the rate of $450 an hour. Dr. Lieberman testified that the charges were his way of compensating for the time lost from the office or hospital, that this is common with medical expert witnesses. Plaintiff contends that the other 22 hours are unaccounted for but they have been supported by actual trial testimony and Exhibit C, demonstrating the costs were incurred post §998 offer.

Dr Liberman testified that he examined plaintiff and reviewed medical records and prepared a report of his findings and a report of documentation he reviewed. The examination & medical report occurred May 24, 2019 and the report of record review was made 10.03.2019, all before defendants served their §998 Offer To Compromise on 1.21.2020.

Plaintiff further contends that Dr. Liberman’s testimony had little impact on the verdict given that it was undisputed that plaintiff was injured in this accident. However, the issue was not whether plaintiff was injured but the nature and extent of the claimed injury and damages. Defendant’s expert conceded during trial testimony that plaintiff was injured in this accident, although not nearly to the extent claimed. Plaintiff contends that defendants’ expert witness costs are unreasonable, unnecessary and unfair. Plaintiff’s motion to tax expert witness fees, as filed, is conclusory and without factual basis.

Costs for exhibits, blow-ups and copies of records are discretionary. CCP §1033.5(a)(1) and CCP §998.

DEFENDANTS’ WRITTEN OPPOSITION

Defendants note that the statutory offer to settle for $55,001.00 plus recoverable costs pursuant to Code of Civil Procedure §998 was filed January 21, 2020 and declined by plaintiff. It is the position of defendants that the expert witness fees of $11,075.00 for orthopedic expert Keith Liberman, M.D., were incurred after January 21, 2020 and supported by the verified cost bill.

However, the issue raised by plaintiff in his reply brief is that the charges for the expert witness fees were actually incurred as of May 24, 2019 (examination/report) and 10.03.2019 (record review).

It appears from a review of all the documentation submitted by the parties for and against this motion, that Dr. Liberman’s report was prepared on May 24, 2019 but charged for on 1.22.2020 as well as the October 3, 2019 record review and report. Creative, but not recoverable as having been incurred prior to the date of the §998 offer. There having been no additional medical reports from Dr. Lieberman, the $500 charge for the report must be and is taxed.

The 2020 review of medical records took nine hours over a period of three days. The records previously reviewed as reflected in Dr. Lieberman’s 10.03.2019 medical records review report likely were the same records reviewed in 2020 since there are virtually no subsequent medical records of significance. The court notes that medical expert witnesses usually are retained on a number of cases coming to trial and it is common for them to re-review records shortly before trial. Whether it should have been 9 hours over a period of 3 days to review the same records that were extensively noted in Dr. Liberman’s October 3, 2019 report is questionable; however it seems to be prudent for an expert medical witness to make sure of his or her basis for trial opinions and to avoid confusing those opinions with records from a separate and distinct case. Even though the second review of medical records occurred five months after the first extensive review and report, nine hours still is a lot of time even for a de novo reading.

The charge of $4,275.00 for a second review of medical records is taxed at one half or $2,137.50.

The billing for Dr. Lieberman’s trial time is appropriate since all experts must account for missed office exams and surgery. The motion to tax $6,000.00 for the expert’s trial time is denied.

The $1,900.00 mistake is understandable as the CSR check box cost, Memorandum Item #11, is directly above the check box #12 for Models, enlargements and photocopies of exhibits. This was corrected in defendants’ written opposition, indicating there were no charges for exhibits etc. and that the expense was for the court reports fees of $950.00 per day.

MOTION to tax, granted to the extent of taxing $2,137 for medical records review and $500.00 for the medical report for a total of $2,637.50. Other than as expressly taxed herein, the motion to tax is denied.

Plaintiff Robert John Arcand

Attorney Derek L. Tabone

Law Offices of Derek L. Tabone

6454 Van Nuys Blvd, Suite 210

Van Nuys, CA 91401

Defendants Fresh Air Environmental Services, Inc. Sergio Rodriguez, Jr.

Attorney Dustin J. Lee

c/o Law Offices of Mark R. Weiner & Associates

655 North Central Avenue, 12th Floor

Glendale, CA 91203-1434

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