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This case was last updated from Los Angeles County Superior Courts on 05/24/2019 at 04:25:24 (UTC).

SUSAN CHAN CHOW ET AL VS MA LEYBA ET AL

Case Summary

On 01/31/2017 SUSAN CHAN CHOW filed a Personal Injury - Medical Malpractice lawsuit against MA LEYBA. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is MONICA BACHNER. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8838

  • Filing Date:

    01/31/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Medical Malpractice

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

MONICA BACHNER

 

Party Details

Plaintiffs

CHOW LINDSEY

CHOW SUSAN CHAN

Defendants and Respondents

NGUYEN TAO

VERITY HEALTH SYSTEM OF CALIFORNIA

ST. VINCENT MEDICAL CENTER

LEYBA MA

DOES 1-100

TUNG JAGDEEP

RAMIREZ PONCE LUCIO

CANNON TERESA

CHOW WILLIAM

VUE DANIE

BARRIOS LYDIA

MARKOVIC DEJAN

CALIFORNIA HOSPITAL MEDICAL CENTER

BATRA NARINDER

JUAREZ MARIANA

LOPEZ FERNANDO

Attorney/Law Firm Details

Defendant Attorneys

OZERAN DAVID JAY ESQ.

MCKENNA III ROBERT LOWELL ESQ.

 

Court Documents

Unknown

1/22/2018: Unknown

SUSAN CHAN CHOW'S DECLARATION IN SUPPORT OF OPPOSITION TO DEMURRER

1/24/2018: SUSAN CHAN CHOW'S DECLARATION IN SUPPORT OF OPPOSITION TO DEMURRER

LINDSEY CHOW'S DECLARATION IN SUPPORT OF MOTION FOR PUNITIVE DAMAGES

1/31/2018: LINDSEY CHOW'S DECLARATION IN SUPPORT OF MOTION FOR PUNITIVE DAMAGES

DECLARATION OF SUSAN CHAN CHOW

2/5/2018: DECLARATION OF SUSAN CHAN CHOW

DEFENDANTS' MOTION TO ABATE THE ACTION; MORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JANEE M. TOMLINSON

2/13/2018: DEFENDANTS' MOTION TO ABATE THE ACTION; MORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JANEE M. TOMLINSON

AMENDMENT TO COMPLAINT

2/16/2018: AMENDMENT TO COMPLAINT

Unknown

3/26/2018: Unknown

LINDSEY CHOW'S DECLARATION IN SUPPORT OF OPPOSITION TO DEFENDANTS MOTION TO STRIKE

4/27/2018: LINDSEY CHOW'S DECLARATION IN SUPPORT OF OPPOSITION TO DEFENDANTS MOTION TO STRIKE

REPLY TO OPPOSITION TO MOTION TO STRIKE

5/3/2018: REPLY TO OPPOSITION TO MOTION TO STRIKE

STIPULATION AND ORDER TO USE CERTIFIED SHORTHAND REPORTER

6/18/2018: STIPULATION AND ORDER TO USE CERTIFIED SHORTHAND REPORTER

PROOF OF SERVICE OF SUMMONS

6/28/2018: PROOF OF SERVICE OF SUMMONS

OBJECTIONS TO PLAINTIFFS EVIDENCE SUBMITTED WITH THEIR MOTION TO AMEND

8/15/2018: OBJECTIONS TO PLAINTIFFS EVIDENCE SUBMITTED WITH THEIR MOTION TO AMEND

PLAINTIFFFS ANSWER & REPLY TO OPPOSITION (FILED BY LA FOLLETTE) TO OUR MOTION TO AMEND, ETC

8/24/2018: PLAINTIFFFS ANSWER & REPLY TO OPPOSITION (FILED BY LA FOLLETTE) TO OUR MOTION TO AMEND, ETC

DECLARATION OF DAVID J. OZERAN (CCP 430.41(A) (2))

2/22/2017: DECLARATION OF DAVID J. OZERAN (CCP 430.41(A) (2))

NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

3/24/2017: NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES

NOTICE OF FILING ORIGINAL PROOFS OF SERVICE TO DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT AND NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT;ETC.

8/25/2017: NOTICE OF FILING ORIGINAL PROOFS OF SERVICE TO DEFENDANTS' NOTICE OF DEMURRER AND DEMURRER TO FIRST AMENDED COMPLAINT AND NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF FIRST AMENDED COMPLAINT;ETC.

REPLY TO OPPOSITION TO DEMURRER AND MOTION TO STRIKE

9/22/2017: REPLY TO OPPOSITION TO DEMURRER AND MOTION TO STRIKE

ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

10/2/2017: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE

194 More Documents Available

 

Docket Entries

  • 05/21/2019
  • at 08:31 AM in Department 71, Monica Bachner, Presiding; Post-Mediation Status Conference - Not Held - Advanced and Vacated

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  • 05/17/2019
  • Notice (of Hearing of Demurrer and Motion to Strike); Filed by Lydia Barrios (Defendant); Mariana Juarez (Defendant); Ma Leyba (Defendant) et al.

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  • 05/15/2019
  • at 3:50 PM in Department 71, Monica Bachner, Presiding; Nunc Pro Tunc Order

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  • 05/15/2019
  • Minute Order ( (NUNC PRO TUNC ORDER)); Filed by Clerk

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  • 05/10/2019
  • at 08:30 AM in Department 71, Monica Bachner, Presiding; Hearing on Motion - Other

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  • 05/10/2019
  • Notice of Ruling; Filed by Lydia Barrios (Defendant); Mariana Juarez (Defendant); Ma Leyba (Defendant) et al.

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  • 05/09/2019
  • at 08:30 AM in Department 71, Monica Bachner, Presiding; Order to Show Cause Re: (Sanctions for plaintiff Susan Chan Chow's Failure to Appear) - Held - Continued

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  • 05/09/2019
  • at 08:30 AM in Department 71, Monica Bachner, Presiding; Status Conference (Regarding Bankruptcy as to St. Vincent Medical Center and Verity Health System of California, Inc.) - Held - Continued

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  • 05/09/2019
  • Minute Order ( (STATUS CONFERENCE REGARDING BANKRUPTCY AS TO ST. VINCENT MEDI...)); Filed by Clerk

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  • 05/02/2019
  • Case Management Statement; Filed by St. Vincent Medical Center (Defendant); Verity Health System of California (Defendant)

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407 More Docket Entries
  • 02/21/2017
  • Minute order entered: 2017-02-21 00:00:00; Filed by Clerk

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  • 02/14/2017
  • at 00:00 AM in Department 309; (Order-Complex Determination; Case Determined to be non-Complex) -

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  • 02/14/2017
  • Proof-Service/Summons; Filed by Susan Chan Chow (Plaintiff); Lindsey Chow (Plaintiff)

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  • 02/14/2017
  • Minute order entered: 2017-02-14 00:00:00; Filed by Clerk

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  • 02/14/2017
  • Proof-Service/Summons; Filed by Susan Chan Chow (Plaintiff); Lindsey Chow (Plaintiff)

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  • 02/14/2017
  • Proof-Service/Summons; Filed by Susan Chan Chow (Plaintiff); Lindsey Chow (Plaintiff)

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  • 01/31/2017
  • SUMMONS

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  • 01/31/2017
  • VERIFIED COMPLAINT FOR: 1. WRONGFUL DEATH; 2. MEDICAL MALPRACTICE; 3. NEGLIGENCE; 4. SURVIVAL ACTION; AND 5. FALSE IMPRISONMENT.

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  • 01/31/2017
  • Summons; Filed by Susan Chan Chow (Plaintiff); Lindsey Chow (Plaintiff)

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  • 01/31/2017
  • Complaint; Filed by Susan Chan Chow (Plaintiff); Lindsey Chow (Plaintiff)

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Tentative Rulings

Case Number: BC648838    Hearing Date: July 09, 2020    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

SUSAN CHAN CHOW, et al.,

vs.

MA LEYBA, et al.

Case No.: BC648838

Hearing Date: July 9, 2020

Defendant St. Vincent Medical Center’s motion for summary judgment is granted.

Defendant St. Vincent Medical Center (“Defendant”) moves for summary judgment on the operative fourth amended complaint of Plaintiff Lindsey Chow (“Plaintiff”). (Notice of Motion, pgs. 1-2; C.C.P. §437c(a).)

Evidentiary Objections & Request for Judicial Notice

Plaintiff’s 4/6/20 request for judicial notice is granted as to the statutes or caselaw referred to in Exhibits 1-4, 6 – 11, 13-15) (but not Plaintiff’s comments or analysis of those exhibits), and denied as to Exhibits 5, 12 (P-RJN, Exhs. 1-15; Opposition pgs. 41-52.)

Plaintiff’s 4/6/20 evidentiary objection titled “Objection Part One” is overruled. (Opposition, pgs. 20-21.) Plaintiff’s 4/6/20 evidentiary objection to the declaration of Defendant’s expert witness Dr. Andrew Wachtel (“Dr. Wachtel”) is overruled. (Opposition, pgs. 21-22.)

Defendant’s 4/14/20 evidentiary objections to exhibits attached to Plaintiff’s opposition are sustained as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13. (Exhs. 1, 2, 3, 4, 5, 6, 6 [second], 8, Tomlinson email exchange, 10, 12, 13, and 18.)

Defendant’s 4/14/20 evidentiary objection No. 14 to the declaration of Plaintiff is sustained.

CRC Violations

Plaintiff’s separate statement violates CRC Rules 3.1350(f) and 3.1354(b). Plaintiff did not, for each “disputed” fact, state the nature of the dispute and describe the evidence (by reference to exhibit, title, page and line numbers) that supports the position that the fact is controverted. (CRC 3.1350(f)(2)-(3) and 3.1354(b).)

Plaintiff’s evidentiary objections violate CRC Rule 3.1354(b). Plaintiff’s evidentiary objections were not filed separately and appear to be contained in pages 19-22 of her opposition. In addition, the objection to Dr. Andrew Watchel is not formatted correctly, though it appears to be an objection to his conclusion that “no act or omission” caused the death on the grounds that such a declaration is not based on personal knowledge. (Opposition, pgs. 21-22.)

Procedural Background & Operative Fourth Amended Complaint

On May 29, 2018, Plaintiff and Plaintiff Susan Chan Chow (“Susan”) filed their fourth amended complaint alleging wrongful death, medical malpractice, negligent infliction of emotional distress (“NIED”), and a survival action against Defendant and other named defendants in connection with the November 6, 2015 death of decedent Henry Chow (“Decedent”), Plaintiff’s father and Susan’s husband, while he was Defendant’s patient. On July 22, 2019, the Court denied Plaintiff’s motion to substitute herself as successor-in-interest to Susan, who had passed away on March 23, 2019, and had been maintaining causes of action for medical malpractice and survival action as the successor-in-interest to Decedent. (Court’s 7/22/19 Minute Order.) On September 13, 2019, the Court sustained Defendant’s demurrer to Plaintiff’s NIED cause of action, with leave to amend, granted Defendant’s motion to strike Plaintiff’s allegations pertaining to and prayer for punitive damages, and denied Defendant’s motion to strike the medical malpractice cause of action and the survival action based on Plaintiff’s pro per status on the grounds that Plaintiff still had the option of retaining counsel to pursue those causes of action on Decedent’s behalf. (Court’s 9/13/19 Minute Order.) Plaintiff elected to not file a fifth amended complaint, and as such the demurrer to the NIED cause of action is sustained. As of the date of this hearing, a successor-in-interest has not been appointed to maintain Susan’s causes of action and Plaintiff is still a self-represented litigant. The remaining causes of action of the operative fourth amended complaint are wrongful death, medical malpractice, and survival.

Plaintiff’s wrongful death, medical malpractice, and survival causes of action are based upon allegations that Decedent was admitted to Defendant’s facility on October 31, 2015 and passed away on or about November 6, 2015 due to the illegal acts of Defendant’s staff and the complete withdrawal of care by Defendant’s staff. (4AC ¶¶23-85.) As such, the causes of action are based on Defendant’s negligent treatment of Decedent and his resulting injury and/or death during and after such treatment.

Wrongful Death, Medical Malpractice, & Survival Action

A cause of action for professional negligence (medical malpractice) requires the following elements: (1) duty of care owed plaintiff to use such skill, prudence and diligence as other members of the profession commonly possess and exercise; (2) breach; (3) causation; and (4) damage. (Burgess v. Superior Court (1992) 2 Cal. 4th 1064, 1077.)

The elements of a wrongful death claim “include (1) a ‘wrongful act or neglect’ on the part of one or more persons that (2) ‘cause[s]’ (3) the ‘death of [another] person.’ [Citation]” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 404.) (See also C.C.P. §377.60.)

“Unlike a cause of action for wrongful death, a survivor cause of action is not a new cause of action that vests in the heirs on the death of the decedent. It is instead a separate and distinct cause of action which belonged to the decedent before death but, by statute, survives that event. [Citation] The survival statutes do not create a cause of action. Rather, ‘[t]hey merely prevent the abatement of the cause of action of the injured person, and provide for its enforcement by or against the personal representative of the deceased.’ [Citation]” (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1264.)

Defendant submitted evidence showing Plaintiff cannot establish Defendant breached a duty of care or caused her damages/Decedent’s death. (C.C.P. §437c(p)(2).) Specifically, Defendant submitted a declaration from expert Dr. Wachtel. (Decl. of Dr. Wachtel ¶¶2-14, Exh. A [CV]; Decl. of Ozeran ¶5, Exh. D [Medical Records] (“Exh D”); Decl. of Fisher ¶¶1-2 [Custodian of Records].) (See Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412 (“‘Expert evidence in a malpractice suit is conclusive as to the proof of the prevailing standard of skill and learning in the locality and of the propriety of particular conduct by the practitioner in particular instances because such standard and skill is not a matter of general knowledge and can only be supplied by expert testimony. [Citations.]’”).) (See also Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498 (“‘The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.] That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. [Citation.]’ [Citations]”).)

Dr. Wachtel declared that when Decedent presented to Defendant’s emergency room on October 31, 2015 for an onset of shortness of breath and chest pain, his medical history included diagnoses of diabetes, non-ST-elevated myocardial infarction (heart attack), acute respiratory failure, acidosis, acute kidney failure, encephalopathy, and aspiration pneumonia, and it was noted that his prognosis was “poor.” (Decl. of Dr. Wachtel ¶5; [Disputed Separate Statement of Fact (“D-SSF”) Nos. 1, 8, 9] Exh. D, pgs. 1-2, 11-12, 26.) Defendant submitted evidence that in the emergency room, Decedent underwent an EKG, was intubated for respiratory distress, thereafter experienced severe bradycardia and had cardiac arrest necessitating CPR to be resuscitated. ([D-SSF Nos. 2-3] Exh. D, pgs. 4, 9, 11, 19.) Dr. Wachtel declared the care and treatment rendered to Decedent in Defendant’s emergency room met the standard of care and that no act or omission on the part of Defendant’s personnel while Decedent was in the emergency room caused or contributed to his death on November 6, 2015. (Decl. of Dr. Wachtel ¶7.) Defendant submitted evidence that Decedent was transferred from the emergency room to the cath lab in critical condition, and then to the intensive care unit (“ICU”), where he was intubated, placed on a ventilator, feeding tube and Foley catheter, was seen by various medical specialists and cared for by ICU nurses and respiratory therapists. ([D-SSF Nos. 4, 10] Exh. D, pgs. 9, 17-19, 24-42; Decl. of Dr. Wachtel ¶8.) Dr. Wachtel declared Decedent received extensive and appropriate care during his stay and his transfer to the ICU demonstrates he received a higher level of care than if he had been transferred to a ward. (Decl. of Dr. Wachtel ¶8.)

Defendant submitted evidence that on November 5, 2015, a Code Blue was called, the hospitalist Dr. Tao Nguyen (“Dr. Nguyen”) was consulted and noted that Decedent was admitted for cardiogenic shock, had multiple severe lesions the cardiologist was unable to open, was on three vasopressors, had become more hypotensive, was in a PEA rhythm and thereafter CPR was administered to Decedent who also received three rounds of Epinephrine, after which Decedent regained a weak pulse and was back on ventilator and continued with his vasopressors. (USSF No. 11 (“USSF” refers to undisputed facts).) Defendant submitted evidence that Dr. Nguyen discussed the situation and Decedent’s poor prognosis with Decedent’s son William Chow (“William”), who agreed to make Decedent a Do Not Resuscitate (“DNR”) patient and signed the appropriate form. (USSF No. 12.) Defendant submitted evidence that the DNR order instructed health care providers that a natural death was to be allowed with comfort-focused treatment. ([D-SSF No. 13] Exh. D, pg. 49.) Defendant submitted evidence that Decedent died on November 6, 2015, with a final diagnosis of acute myocardial infarction, cardiogenic shock, acute kidney injury, diabetes mellitus, acute diastolic heart failure, aspiration pneumonia, and sepsis. ([D-SSF No. 14] Exh. D, pgs. 46-47.) Dr. Wachtel opined that Defendant’s medical staff met the standard of care in the medical treatment they rendered to Decedent throughout his stay. ([D-SSF No. 15] Decl. of Wachtel ¶12.) Dr. Wachtel also opined that it was appropriate and within the standard of care for Dr. Nguyen to issue the DNR order upon obtaining William’s consent, and for the hospital staff to carry out that order, which it did appropriately and within the standard of care. ([D-SSF No. 16] Decl. of Wachtel ¶14.) Dr. Wachtel opined that no act or omission on the part of Defendant’s personnel caused injury to Decedent or his death and that the placing of Decedent on DNR did not cause his death because to a reasonable medical probability he was going to die shortly after the November 5, 2015 Code Blue regardless of whether he was on a DNR or not. ([D-SSF Nos. 17-18] Decl. of Dr. Wachtel ¶¶13-14.) Dr. Wachtel declared his opinions were rendered with a reasonable medical probability. (Decl. of Wachtel ¶¶13, 14.)

Based on the foregoing, Defendant met its burden on summary judgment. Therefore, the burden shifts to Plaintiff to create a triable issue of material fact. (C.C.P. §437c(p)(2).) Plaintiff failed to meet her burden.

Plaintiff failed to submit admissible competent evidence creating a triable issue of fact as to Defendant’s submitted evidence that Defendant met the standard of care and that Defendant’s care of Decedent was not the cause of Decedent’s injury or death. Plaintiff has not submitted a declaration of a competent medical expert to dispute Dr. Wachtel’s expert testimony that Defendant met the standard of care in its care and treatment of Decedent. Plaintiff’s declaration does not constitute competent evidence given that the “common knowledge” exception does not apply to the instant case. (See Reply, pgs. 2-3; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001; Landeros v. Flood (1976) 17 Cal.3d 399. 410.) Similarly, Plaintiff’s declaration does not create a triable issue of fact as to Dr. Wachtel’s opinion that Defendant’s care did not cause Decedent’s injury or death, given that competent expert testimony is required. (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal. App.4th 1108, 1118.)

Plaintiff’s arguments in opposition relating to the Bankruptcy Court findings in lifting the stay incorrectly assert that the Bankruptcy Court made a finding as to the merits of Plaintiff’s claim, when instead it determined that based on Plaintiff’s allegations this Court would be the best suited forum to adjudicate Plaintiff’s claims. (Opposition, pgs. 8-9; Reply, pgs. 5-6.) Plaintiff’s arguments in opposition that Defendant’s treatment of Decedent constituted “intentional murder” as opposed to negligence, whether conduct of Defendant’s staff caused Decedent’s death, and arguments relating to the DNR order and taking Decedent off the ventilator are irrelevant to her burden in opposing Defendant’s motion for summary judgment, for which she must submit expert testimony in support of her assertions. (Opposition, pgs. 1-7.) Plaintiff’s arguments in opposition relating to the underlying procedure of the instant action, the prior rulings of this Court, the effects of MICRA on medical lawsuits, the purported violation of Equal Protection, whether murder is within a standard of care, and federal field preemption over health services are irrelevant to her burden in opposing summary judgment. (Opposition, pgs. 7-19.) Plaintiff failed to submit evidence creating a triable issue of fact as to whether Defendant’s treatment of Decedent was within the standard of care and/or caused Decedent’s injury and/or death.

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

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