June Bar Association Journal Post Office Box 1473 Nevada City, CA

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1 June 2013 Nevada County Bar Association Journal Post Office Box 1473 Nevada City, CA CANDACE S. HEIDELBERGER, Presiding Judge THOMAS M. ANDERSON, Judge SEAN P. DOWLING, Judge YVETTE DURANT, Commissioner SUPERIOR COURT OF THE STATE OF CALIFORNIA County of Nevada 201 Church Street Nevada City, CA (530) Meeting Agenda California Rules of Court, Rule June 7, 2013 at Noon Department III 1. Welcome Home Vets presentation by Gary Brown. 2. Counsel appearing on a case without authority to settle. B. SCOTT THOMSEN, Assistant Presiding Judge LINDA J. SLOVEN, Judge ROBERT L. TAMIETTI, Judge G. SEAN METROKA, Court Executive Officer 3. Reminder: Attorney s responsibility to meet and confer before court, not during court. 4. Reminder: Attorney s responsibility to let Clerk know if you are going to be late. 5. Continuing discovery issues, if any? 6. Too many continuances! 7. Attorney s Fee Agreements in Public Defender Cases. Still not seeing them in most cases. 8. Change in how defendant s weekend commits will be ordered. (Those commits of less than 30 days which are ordered directly from bench not referrals to the Sheriff s Alternative Sentencing Program) Where defendant requests weekend commit, but shows up without the fee, commit will be automatically converted to straight time. This is the agenda for the Criminal Court meeting pursuant to California Rules of Court, Rule , to discuss issues and possible remedies for the criminal courts. The meeting will take place on Friday, June 7, 2013, at Noon in Department III to allow participation by video conference at the Truckee Branch. This will be a brown bag lunch meeting so please feel free to bring your lunch with you. Please take notice that Judges Heidelberger, Thomsen, Tamietti, Anderson, Dowling, Sloven, and Commissioner Durant, are calling a meeting pursuant to Rule of the California Rules of Court, to discuss issues and possible remedies for the criminal courts. One item that will be on the agenda is a brief presentation by Gary Brown from Welcome Home Vets. May was a relatively quiet month for the NCBA. We held our first regular meeting with the new Executive Committee, and discussed ongoing projects for improving access to justice, promoting community events, and developing a plan to generate revenue for the Bar Association to use for such projects. Nothing was decided, President s Message By Mike Cobden but the ideas and conversation are well under way. I am very proud to report that many of you responded to the call for volunteers for a three-person fee arbitration panel sent out by Maralee Nelder recently. If we can keep up that level of support and enthusiasm, it will no doubt make Maralee s job much easier. Please continue to support her efforts! As always, let us know how we can serve your needs, and promote the interests and goals of the legal community in Nevada County.

2 Nevada County Bar Association Journal June 2013 Page 2 Notes from the recent 2012 Legal Update for ADR in Sacramento by Rosemary Metrailer, ADR Section Chair Two mediation cases: Bowers v. Raymond J. Lucia Companies, 206 Cal.App.4th 724, holds that where the parties agreed in the middle of an arbitration to resolve their matter by "binding mediation" via the baseball arbitration mode if they couldn't settle it after one full day of mediation, and where this happened and the mediator chose one party's number over the other's, the agreement is sufficiently certain and the "baseball" award is enforceable. Cullen v. Corwin, 206 Cal.App.4th 1074, holds that where a defendant refused to mediate until after he could engage in discovery and file a motion for summary judgment first, he could not then recover his attorney fees per contract in the successful MSJ because the requirement is meant to encourage mediation at the earliest possible time, and further, there's a strong public policy to promote mediation as a preferable alternative, less expensive and more expeditious than judicial proceedings. NOTE: The speaker also advised that there are rumblings in the Legislature to possibly "gut" the confidentiality protections in Cassell, so stay tuned for that and be prepared to comment as appropriate if and when the time comes. Message from Gretchen Nelson Dear Fellow Board Members: The State Bar is extending the JNE application deadline to June 14. As you know, JNE plays an important role in the selection of our judiciary. We're looking for a few more qualified individuals to round out our applicant pool for next year's Committee. I ask each of you to encourage your constituents to apply, and also any non-attorneys who you know may be interested in applying. JNE needs attorney and public members from all districts. The application form, and information on the commission, is available at the State Bar's website: JNE Commission or from the bar's Appointments Office, ; fax: or karen.hagelund@calbar. ca.gov. Thank you. Gretchen Nelson Happy Retirement Gary Gordon!!!! From your friends in Dependency Court Standing: left to right: Larry Montgmery, Ken Tribby, Bill Walker, Kathy Lindsay Sitting: left to right: Katy Francis, Gary Gordon, Mundy Keller

3 Nevada County Bar Association Journal June 2013 Page 3 Ethics and Civility: Want an Extension? Forget About It! June Thursday, June 6, 2013: State Bar Business Law Section presents Webinar: The Contractual Integration Clause After Riverisland, participation by computer [1 hour participatory MCLE credit] Why should you care about what opposing counsel and your colleagues think of you if you are winning? It is critical to understand how, while navigating inherent complexities and pressures, candor and civility can impact your effectiveness and duties owed to your client. Learn about the practical aspects of candor and civility under the Rules and Guidelines of Civility and Professionalism, and discover the traps for unwary, battle worn lawyers. Speaker: Randall Difuntorum. Sign up for this program at Thursday, June 6, 2013: State Bar Criminal Law Section presents Webinar: Defending Domestic Violence & Restraining Orders: Tips of the Trade, participation by computer [1 hour participatory MCLE credit, 1 hour legal specialization credit in Criminal Law] Thursday, June 6, 2013: State Bar Labor and Employment Law Section presents Webinar: The Never-Ending Story Arbitration Agreements and the Law, participation by computer [1.5 hours participatory MCLE credit] Tuesday, June 11, 2013: State Bar Intellectual Property Law Section presents Webinar: Cover Your APP: Mobile APP Privacy & COPPA Compliance Explained, participation by computer, [1 hour participatory MCLE credit] Tuesday, June 11, 2013: State Bar Workers' Compensation Section presents Webinar: Underutilized Rating Issues, participation by computer, [1 hour participatory MCLE credit, 1 hour legal specialization credit in Workers' Compensation Law] Wednesday, June 12, 2013: State Bar Antitrust Law Section presents Webinar: Quid Novi? -- Competition in California, participation by computer [1 hour participatory MCLE credit] Wednesday, June 12, 2013: State Bar Criminal Law Section presents Webinar: Preparing and Presenting Expert Witnesses, participation by computer [1 hour participatory MCLE credit, 1 hour legal specialization credit in Criminal Law] Thursday, June 13, 2013: State Bar Business Law Section presents Webinar: Franchise Relations: Independent Contractor or Employee, participation by computer [1 hour participatory MCLE credit] Thursday, June 13, 2013: State Bar Family Law Section presents Webinar: Effective Support and Fee Enforcement: 7 Tips and Tricks Not to Be Missed, participation by computer, [1 hour participatory MCLE credit, 1 hour legal specialization credit in Family Law] Friday, June 14, 2013: State Bar Trusts and Estates Section presents Estate Planning Through Administration The Exam and You, State Bar of California, 180 Howard St., San Francisco [6.5 Hours MCLE and Legal Specialization Credit Included] Tuesday, June 18, 2013: State Bar Intellectual Property Law Section presents Webinar: Registering with U.S. Customs and Border Protection, and Enforcement Tips for Trademark Practitioners, participation by computer, [1 hour participatory MCLE credit] Wednesday, June 19, 2013: State Bar Trusts and Estates Section presents Webinar: Lessons Learned at the Edge of the Fiscal Cliff, participation by computer [1 participatory MCLE credit, 1 credit legal specialization credit in Estate Planning; Trust & Probate Law] Thursday-Saturday, June 20-22, 2013: State Bar of California Solo Summit, Renaissance Long Beach Hotel, 111 E. Ocean Blvd., Long Beach, [Up to 10 hours participatory MCLE credit] Thursday, June 27, 2013: State Bar Criminal Law Section presents Webinar: - Criminal Appellate Practice 101, participation by computer [1 hour participatory MCLE credit, 1 hour legal specialization credit in Criminal Law] Thursday, June 27, 2013: State Bar Family Law Section presents Webinar: Beyond Restraining Orders: Practices and Laws to Maximize Safety for Domestic Violence Survivors in Family Law Cases, participation by computer, [1 hour participatory MCLE credit, 1 hour legal specialization credit in Family Law] Thursday, June 27, 2013: State Bar Intellectual Property Law Section presents Intellectual Property in Entertainment and the Media, The Luxe Sunset Boulevard, Los Angeles, [6.25 hours participatory MCLE credit] Friday, June 28, 2013: State Bar Environmental Law Section presents Private Enforcement Conference, Oakland, [ 6 hours participatory MCLE credit] Friday, June 28, 2013: State Bar Taxation Section presents Annual Income Tax Seminar, THREE LOCATIONS: Golden Gate University School of Law, 536 Mission St., San Francisco; Whittier School of Law, 3333 Harbor Blvd., Costa Mesa, and; University of San Diego School of Law, 5998 Alcala Park, San Diego [7.5 hours participatory MCLE credit, including 1 hour in Legal Ethics; 7.5 hours legal specialization credit in the area of Taxation Law; 9 hours of CPE credit; 9 hours of continuing education credit for enrolled agents]

4 Nevada County Bar Association Journal June 2013 Page 4 Be Advised Hello Sargent Jacobs, I am the Law Librarian along with Terry Houser and Connie Martin. The Court and the Law Library Board of Trustees has decided that Licensed Attorneys should be allowed to use the Law Library on Fridays when it is closed to the general public. In the future the Law Library will be installing some sort of the key card access for the attorneys, but until then we have come up with the following procedure and wanted to pass it by you to see if you had any objections. If an attorney needed access to the locked Law Library on a Friday, they would first see if our CEO Mr. Metroka was available to open it up for the them and only them. They are not allowed to meet with their clients in the Library. They would be required to show their Attorney State Bar card. If Mr. Metroka is not available, then the attorney may ask one of the clerks to contact court holding to have a deputy open the Library for them. The attorney would be responsible to make sure the door is locked while they are working in the library and the blinds closed, so as to not attract or be interrupted by the general public when seen through the windows. We will be putting this procedure in the local Bar Newsletter this month as well. We will ask the attorneys to lock the door on their way out, but would greatly appreciate it if at the end of the day if a deputy could do a walk by and make sure the door is locked for the weekend. Please let me know if you have any suggestions or objections to any part of this procedure. Thank you so much for your time and consideration. Joan Joan Connelley Legal Assistant/Law Librarian Public Law Center/Law Library Nevada County Superior Court California Bar Foundation invites board applicants The California Bar Foundation is looking for attorneys, judges or members of the public to join its board of directors. The foundation supports full and equal access to the law, invests in the next generation of California lawyers, educates Californians about their rights and responsibilities under the law and promotes philanthropy throughout the legal community. The board consists of up to 35 members appointed by the State Bar Board of Trustees and three ex officio members. Appointed members serve two-year terms and are expected to attend four board meetings per year while actively participating on three board committees. Each board member is expected to make a personally meaningful financial contribution to the foundation and to actively participate in fundraising for the foundation. Applications, consisting of a resume or CV and statement of interest and qualifications, must be submitted via by Aug. 16 to Executive Director Sonia Gonzales, sgonzales@calbarfoundation.org. For Rent 220 Main St. Great location for attorney. Call or jan@homernottingham.com. Will considering renting it on a daily basis for out- of- area attorneys to meet with clients. Dispute? Resolution! Judge Albert P. Dover (ret.) Please call: (530) or at al@adrwithdover.com Visit the website for information on rates, fees, and services:

5 Nevada County Bar Association Journal June 2013 Page 5 The Business of Lawyering By Sam Frazier, Member of the Placer County Board of Directors Are you making all of the money you want, or need? Do you stress about making the rent each month, meeting the salary of the secretary and support staff or paying the telephone bill? Let s face it. These are tough times. Clients don t have much money to pay us. If they are in the construction trade or in business for themselves, chances are they are suffering like us. We are not a benevolent organization. We are in the business of making money. Idealistic as lawyers want to be, or as Judges want you to think, we are in business to earn our living. It is a priority for each private practioner. Unfortunately, and probably though movies and television, the lay public thinks we are all rich. There are some tricks of the trade I have learned over the years. I share two of them. Lunch: the Ultimate Business Builder Always go to lunch. Never eat alone. I ve met many lawyers that will call up a client for a lunch date. It is a complete waste of time and often a stressor on the digestive system. You already have that client. No need to schmooze him or her. The Answer: take another lawyer to lunch. Lawyers are the primary source of referrals for you. It is not necessary to talk about cases or the law. Don t worry, it always comes up! Talk about fishing, dancing, sewing, clothes, gardening, anything to establish repore. My business is 90% lawyer referral. Additionally, I grant that lawyer a referral fee. Lawyer Referral Service Another tried and true way to get clients who are in immediate need of a lawyer and ready to retain you is through a lawyer referral service. Stay away from the private lawyer referral services that take a big percentage and advertise you as well screened and some sort of super hero in the community. I m talking about the State mandated local lawyer referral service. Northern California is served by a 20 County wide referral service. Our county is served by the Northern California Referral Service and is a Certified State Bar of California service. NCLRS is a non-profit organization, sanctioned by the State Bar of California. Northern California Lawyer Referral Service (NCLRS) seeks to provide our community with legal services that are not otherwise available. NCLRS matches those in need of legal representation, advice, or document preparation with participating attorneys who will offer an initial consultation for a referral fee, and further services, including limited scope representation, on economic terms agreeable to attorneys and their clients. NCLRS provides information on the availability of legal and alternative dispute resolution services, provides information about lawyers who practice in specific areas of law, and helps to improve the quality and affordability of legal services for the community. Attorneys join LRS panels by certifying their area(s) of practice, completing an application and attorney experience questionnaire, and an attorney agreement to comply with rules and law, and paying an annual membership fee. Participating attorneys return to LRS a portion of any fees paid by clients to help support legal services operations of NCLA, a nonprofit, tax-exempt organization. An annual fee of $100 allows the attorney to choose three practice areas plus family law. (That s our area of greatest need, so they do not charge extra for it.) Any additional practice areas are $25 each. The application includes an attorney experience questionnaire which must be completed for each practice area and submitted with the application. Referrals are made on a rotational basis within each of the 20 counties served in 18 practice areas, so you will get your fair share of referrals. Attorneys certify that they will also forward 15 percent of fees over $300 to LRS. For complete details and an application visit the Northern California Lawyer Referral Service at The Placer County Bar Association is a generous financial supporter of the NCLRS My Personal Experience Works for me! For those that do not know my story; five years ago I lost my ranch and my entire law offices in the San Diego wildfires. Files, cell phones, computers, furniture, all lost to the flames. I made the front page, above the fold, headlines of the Los Angeles Daily Journal. (Goggle: EXPAT Bar Association or they can t leave California behind). I found a referral service worked for me for 30 years before the fires and worked well for me during the post fires. Having been burned out twice I moved to Placer County. I met new lawyers and new friends. My business of practicing law barely missed a beat. If you are reading this article and want a free lunch, call me! I immediately joined the lawyer referral service for Placer County. I m on the civil litigation and personal injury panel. Within 3 days, clients were sent to me. These were people who did not know a lawyer and had immediate legal needs. They had paid the LRS $40 just to see me for a half hour. I ve had NCLRS clients walk in needing an answer to a lawsuit within a few days. Personal injury clients, others needing a substantial rental deposit back, or other immediate needs. Often the client really needs to see a lawyer and once advised of his or her rights, it is best not to proceed on their case. The most important thing to remember is that these clients didn t know who to call when faced with a difficult situation. They now know. I ve advised clients not to file a suit on some minor matter only to have them rear ended in a car crash. Having established a relationship with the client, they come immediately back to the one person they know and trust. If I didn t take the case, I referred the case to one of my attorney friends with whom I recently had lunch. I was surprised to recently learn that the number one referral need is for estate planning lawyers. Clients start thinking about a will and do not know who to call. Lunch anyone?

6 Nevada County Bar Association Journal June 2013 Page 6 FROM THE PRESIDENT State Bar reaches out to senior lawyers By Patrick Kelly, President, State Bar of California What a difference just a few months makes. Back in January, I wrote about the Senior Lawyers Working Group, a then-fledgling group I launched to address the challenges facing our state s growing population of older lawyers. I am happy to report that the group chaired by Trustee Pearl Mann has been very productive since then. The State Bar is already moving forward with a number of key initiatives designed to help lawyers who choose to continue practicing into their senior years as well as protect the public from those who can no longer provide competent representation. The working group plans to hold its first public forum from 1 to 3:30 p.m. on June 3 at the State Bar s Los Angeles office, where members will have a chance to hear from medical and legal experts about the clinical aspects of aging and cognitive impairment as it relates to professional competency. The lineup of speakers is impressive. It includes Susan Bernatz, a forensic neuropsychologist for the Los Angeles County Elder Abuse Forensic Center at County/USC Medical Center; William Slease, chief disciplinary counsel for the New Mexico Supreme Court; and Jay Foonberg, a former chair of the State Bar s Senior Lawyers Committee. I encourage you to attend. Also this month, Pearl Mann and fellow Trustee Karen Goodman will take part in a panel discussion targeting issues important to senior lawyers at the State Bar s Solo and Small Firm Summit in Long Beach from June 20 to 22. The title of the program is Relief Practitioner: How to Plan for the 9th Inning of Your Legal Career." (For those of you who cannot attend, the discussion will be repeated at the State Bar s Annual meeting this fall.) The panel discussion is just one of several programs relevant to older lawyers scheduled during the solo summit. For example, an MCLE program called Planning for the Death or Disability of the Solo Practitioner will be presented from 1:15 to 2:15 p.m. on June 20. It s hard to look at a newspaper without coming across an article addressing the so-called Silver Tsunami, the ominous nickname given to the unprecedented wave of baby boomers who are entering or about to enter their senior years. According to the Administration on Aging, by 2030 there will be 72.1 million Americans aged 65 and older, more than twice the number there were in Seniors will grow to represent 19 percent of the U.S. population. The figures are similarly dramatic for California lawyers. According to a State Bar survey, the percentage of California lawyers 55 or older grew from just 14 percent in 1991 to 48 percent in To get ahead of the curve, the State Bar has launched a senior lawyers web page, a collection of resources that address professional responsibility issues that can arise in connection with retirement, disability and the death of attorneys, including guidelines for closing or selling a law practice. The page will be broadened and updated under the guidance of the working group. Fittingly, the working group has also been working with the State Bar s Lawyer Assistance Program (LAP) to find new ways to provide support to the families, friends and colleagues of lawyers suffering from stress or age-related conditions that impact their behavior and cognition. As a result of that new relationship, the LAP has developed a helpful wellness guide with information about how to spot dementia, Alzheimer s disease and the signs of depression, as well as tips for encouraging an older attorney to make plans for their practice in case of incapacitation. In addition, the State Bar has already developed an Attorney Surrogacy Program to assist attorneys winding down their practice and has published a guide book on this subject. We at the State Bar are attempting to do all we can to fulfill our responsibility of public protection and help senior lawyers have a fulfilling, high quality and professional practice. We are interested in your suggestions for building on these efforts. If you have a suggestion or a comment, please it to State Bar Deputy Executive Director Robert Hawley, robert.hawley@calbar.ca.gov. NCBA Contact Information OFFICERS Michael Cobden - President (530) cobdenlaw@gmail.com Valerie Logsdon- Vice President (530) valerielogsdon@sbcglobal.net Marcos Kropf - Secretary (530) marcos.kropf@co.nevada.ca.us Nancy Christie - Treasurer (530) nancychristielaw@gmail.com MEMBERS AT LARGE Joe Bell (530) attorney@bellslaw.com Paul Johnson SECTION & COMMITTEE CHAIRS Rosemary Metrailer ADR Section Chair (530) rmetrailer@metrailer.com Jennifer Granger Criminal Law Section Chair (530) Jengranger04@yahoo.com Susan Corcoran Family Law Section Chair (530) scorcoran@scorcoranlaw.com Maralee Nelder Fee Arbitration Program Admin. (530) mnelder@nccn.net Judicial Officers Nevada City Branch Dept. I: Dept. II: Dept. III: Dept. IV: Dept. V: Dept. VI: Judge Heidelberger Judge Sloven Judge Thomsen Presiding Judge Anderson Commissioner Durant Judge Dowling Truckee Branch Dept. A (Truckee Branch) Judge Tamietti Dept. B (Truckee Branch) Commissioner Durant Newsletter Helen Cavanaugh - Newsletter Editor (530) , helen.cavanaugh@nevadacountycourts.com Lindsay s Custom Printing - (530) jklindsay@comcast.net

7 Nevada County Bar Association Journal June 2013 Page 7 TRIALS DIGEST: Summary of Trials, Awards, Settlements and Arbirations Deceptive Practices Decision: $478,919,765 Infomercial producers were found liable to the Federal Trade Commission for engaging in deceptive acts and practices by falsely advertising their product and services to consumers (Federal Trade Commission v. John Beck Amazing Profits LLC, Central District Federal Court, Plaintiff s attorney:, Willard K. Tom). Electrified Water Lines Verdict: $4,050,000 A woman alleged negligence, intentional infliction of emotional distress and nuisance after suffering nerve damage resulting from stray electrical currents running through her property (Wilson v. Southern California Edison Company, Los Angeles County Superior Court, Plaintiff s attorney: Lars C. Johnson). Brain Bleeds Settlement: $3,100,000 A man riding his Vespa suffered head trauma, multiple brain bleeds, a right hip fracture, torn right knee ACL, temporary paralysis, and retrograde and anterograde amnesia after he was struck by a van that failed to yield when making a left turn (Brinkmann v. Martinez, Santa Barbara County Superior Court, Plaintiff s attorney: Wayne McClean). Plastic Surgery Verdict: Defense A woman alleged negligence and abandonment against her plastic surgeon when she began experiencing infections, suture failure and implant deflations after surgery (Del Carlo v. Li, Los Angeles County Superior Court, Defense attorney: Patricia Egan Daehnke). Gas Station Fire Verdict: $8,150,000 A gas station owner alleged strict and negligent products liability after a propane dispensing unit he leased from defendant caught fire, resulting in severe burns (Domaille v. AmeriGas Inc., Los Angeles County Superior Court, Plaintiff s attorney: Lawrence P. Grassini). Mesothelioma Verdict: $5,437,883 A man alleged negligence, strict liability, fraud and conspiracy after he was diagnosed with mesothelioma as a result of long-term exposure to asbestos from the defendant s products (Hellam v. Crane Co., Alameda County Superior Court, Plaintiff s attorney: Dianna Lyons). Improper Tree Removal Settlement: $195,000 A property management firm alleged breach of agreement due to defendant s failure to comply with the terms of work contracted after tree maintenance workers performed unauthorized, excessive removal of trees, resulting in disfigurement and loss of aesthetic value in the property (Scientific Investments L.P. v. Four Seasons Tree Care Inc., San Diego County Superior Court, Plaintiff s attorney: Barri Kaplan Bonapart). Foreclosure Decision: $329,000 A homeowner alleged her foreclosure was void since it was based on a Notice of Default that claimed an amount that was materially larger than what she actually owed (Muralles v. Max Capital Investments LLC, Los Angeles County Superior Court, Plaintiff s attorney: Richard I. Wideman). Leg Fractures Settlement: $975,000 A man claimed negligence after he was struck by a bus traveling at an excessive rate of speed while he was in the crosswalk, resulting in leg fractures (Akkawi v. City and County of San Francisco, San Francisco County Superior Court, Plaintiff s attorney: Richard H. Schoenberger). Habitability Violations Verdict: $5,775,458 Tenants alleged negligence, breach of contract, breach of warranty of habitability, intentional influence to vacate and retaliatory eviction after their building s new owner failed to correct numerous violations (Vaughn v. Darwish, Los Angeles County Superior Court, Plaintiff s attorney: Dennis P. Riley). Restaurant Venture Arbitration: Defense A lessee sought recovery for improvements made for a restaurant venture after he gave notice to the lessor following his son s death of intention to terminate the lease agreement early (Hug v. Roberge, Riverside County Superior Court, Defense attorney: Robert J. Gilliland Jr.). Failure to Diagnose Stroke Verdict: Defense A woman s family alleged medical malpractice and failure to diagnose a stroke against an emergency physician after she was discharged with a diagnosis of a conversion reaction and then subsequently admitted to the hospital the following day (Hosea v. Long Beach Memorial Medical Center, Los Angeles County Superior Court, Defense attorney: Thomas McAndrews). Editor s Note: California Bar Journal publishes this abbreviated summary of important trials in California provided by Trials Digest. To report your case results, go to west. thomson.com/trialsdigest/form.aspx or call

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