Until the executive branch and Legislature address this alarming situation and provide essential resources, we are compelled to issue orders such as these, requiring the court to give this case priority until the within matter is completed. Section 1003 provides that [e]very direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. (Daar v. Yellow Cab Co., supra, 67 Cal.2d 695 at pp. (See In re Sean E. (1992) 3 Cal.App.4th 1594, 1599, 5 Cal.Rptr.2d 193; In re Emily L. (1989) 212 Cal.App.3d 734, 743, 260 Cal.Rptr. 1449, 39 L.Ed.2d 492. Learn more about FindLaws newsletters, including our terms of use and privacy policy. In all other respects, the petition is denied. CA Court of Appeal Opinions and Cases | FindLaw peremptory writ of mandate (or mandamus) | Wex | US Law | LII / Balancing is laudable under these circumstances, but is contrary to the direct requirements of the statutory scheme. CA Court of Appeal Opinions and Cases | FindLaw 576, 3.8.) Code of Civil Procedure 1087 Contents; alternative writ; peremptory writ Code of Civil Procedure 1088 Issuance of writ in first instance; form; notice; service; Statute of Limitations (S/L) Petition for writ of administrative mandate must be filed within 90 days of notice of agencys final action Time extended if petitioner makes timely request for record within 10 days of decision WebSUPERIOR COURT OF CALIFORNIA County of Sacramento 720 Ninth Street ~ Room 102 Sacramento, CA 95814-1380 (916) 874-5522 Website www.saccourt.com GUIDE TO It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus. Records do exist, and use of these records would involve neither unreasonable time nor expense. <> In contrast, it appears that a class action brought under the Consumers Legal Remedies Act (Civ.Code, div. 708; Leach v. Swoap, supra, 35 Cal.App.3d 685, 689, 110 Cal.Rptr. Learn more about FindLaws newsletters, including our terms of use and privacy policy. It is immaterial whether the child lives with a relative. 417 0 obj <>stream (See fns. Father was not present at that hearing. To hold otherwise, the court said, would provide a money-saving device for the (debtor) counties at the expense of those of our citizenry least able to bear the burden thereof. (Id., at p. 86, 162 P.2d at p. While an alternative writ of mandamus, permits the public official the option of either doing the act commanded or showing legal cause why it need not be done. 31863187; 6 Witkin, Op. Discussion I. Statutory Background He also relies on Swenson v. Superior Court (1988) 202 Cal.App.3d 348, 248 Cal.Rptr. We have concluded that the reasonable value of their attorneys' services on the appeal should be fixed and awarded by the trial court when it determines costs on appeal. MCR 16-061 Hon. Unless otherwise noted, all further references are to the Welfare and Institutions Code..FN1. "[2], This may also be distinguished from a continuing mandamus, which asks for an officer or other authority to perform its tasks expeditiously for an unstipulated period of time for preventing miscarriage of justice. If a petition for a writ of mandate filed pursuant to Section 1088.5 presents no triable issue of fact or is based solely on an administrative record, the matter may be determined by the court by noticed motion of any party for a judgment on the peremptory writ. (Amended by Stats. 1982, Ch. 193, Sec. 3. Effective May 5, 1982.) While each division of the court is vitally important to the litigants and to society, there is no division of greater importance than the juvenile court, which deals with the sensitive parent-child relationship and the potential of horrendous damage to children. Contact us. WebPETITION FOR MANDATE TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE JUSTICES OFTHE FIFTH DISTRICT COURT OF APPEAL: Petitioner alleges as follows: 1. Appellant nevertheless contends that neither principle may be applied, in a class action, in favor of class members who have not exhausted their administrative (see fn. TermsPrivacyDisclaimerCookiesDo Not Sell My Information, Begin typing to search, use arrow keys to navigate, use enter to select, Stay up-to-date with FindLaw's newsletter for legal professionals. 3. On June 08, 2021 a Complaint,Petition was filed involving a dispute between Doe John , and New York Times Real Party In Interest , Antelope Valley Union High School District , for Other Writ /Judicial Review (General Jurisdiction) in the District Court of Los Angeles County. . 2009 California Code of Civil Procedure - Section 1084-1097 :: Chapter 2. 9, Ante (emphasis again added). 664, the court discusses a statute that provides for a period of knowledge rather than a period of notice. It concludes that under such language the period in which to act commences from the time that counsel is informed of the court's order, if notice, i.e., service of notice, is waived. The right/duty language manifestly refers to the period within which a right may be exercised or a duty to act is to be performed. An application for an order is a motion. Thus, the issuance of a written order on the court's own motion constitutes the granting of a motion. (a)). 2. In the published part of the opinion in this writ proceeding1 we determine that the time within which to file a peremptory challenge to the all-purpose assignment of a trial court judge (Code Civ. <> The Award Of Retroactive Benefits To The Class. 1.5 (commencing with s 1750)) must be determined before the action may proceed to trial. Admissibility of Oral and Written Confessions. Welfare v. County of L.A., supra, 27 Cal.2d 81 at p. 86, 162 P.2d 630 at p. 236242. It must follow, appellant argues, that section 10962 does not authorize an award of attorneys' fees in this case because Code of Civil Procedure section 1094.5 was not invoked as to those members. As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate in the first instance. (Code Civ. Chapter 2 of Title 1 deals with the writ of mandate. (Citations.)' Writ of Mandate The defendant has no further opportunities to contend their subjection to the writ; a peremptory writ of mandate is absolute and unqualified. 11. Retroactive payment of public assistance benefits has been denied in some pertinent federal decisions (e.g., Rothstein v. Wyman (2 Cir. On April 30 the same witness continued her testimony. That decision established that a person who had been wrongfully denied public assistance benefits was entitled to the full payment thereof, from the date he was first entitled to receive the aid, upon the theory that (t)he obligation to pay became a Debt due to him as of that date. hb```),| cb,lv``apA@as'y P7GJfiq5B'f/w:+k~ 5 5f;iy4+=;AqvH ";2:@I2 X,l This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 282. '11 (Emphasis added. . Due to the judge's illness and hospitalization, the matter was trailed to May 21 by stipulation of the parties. 6. 612, 442 P.2d 692). Parkmerced filed its notice of appeal on October 26, 1987. 5, commencing with 1010.) 404 0 obj <>/Filter/FlateDecode/ID[<62FFB6D3763A674EA7082ED5952676AE><9468F6758B8B3F4480F14E7A7D2DFB11>]/Index[388 30]/Info 387 0 R/Length 81/Prev 331294/Root 389 0 R/Size 418/Type/XRef/W[1 2 1]>>stream Judge's gavel on courtroom background. (Ibid.) 8. CCP Section 1074 provides that the review upon this writ cannot be extended further than to determine whether the tribunal, Board, or officer has regularly pursued the authority of the tribunal, Board, or officer. 1, 497 P.2d 225; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 458460, 115 Cal.Rptr. WebThe writ of mandate is a type of extraordinary writ in the U.S. state of California. Vasquez v. Superior Court, supra, 4 Cal.3d 800 at p. 821, 94 Cal.Rptr. Subparagraph (j) of paragraph 6 ordered the Director to file a return to the writ within 135 days. The cost in time and dollars is simply prohibitive. And that petitions for review in the Supreme Court are granted even more rarely. 5, Ante). This reading equates notice with knowledge of the assignment rather than service of notice of the assignment. A more exact definition of a peremptory writ of mandate is "a final order of a court to any governmental body, government official or a lower court to perform an act the court finds is an official duty required by law. CALIFORNIA 435437, 102 Cal.Rptr. On that date, the juvenile court ordered the matter consolidated with the pending family law case and further ordered the matter to the courtroom of the presiding judge for a determination of whether the family law court or the juvenile court should handle the matter. All Rights Reserved. FN1. Petition for Writ of Mandate - The Institute for Justice They demonstrate that the court properly acknowledged the realities and exercised its discretion as a court of equity (see City of San Jose v. Superior Court, supra, 12 Cal.3d 447 at p. 458, 115 Cal.Rptr. 796, 484 P.2d 964; La Sala v. American Sav. No. Neither a stipulation between counsel nor the convenience of the parties is in and of itself a good cause. 751. 237238, 102 Cal.Rptr. . Accordingly, the 10 day period provided by section 170.6, subdivision (2) within which to file a peremptory challenge to the assignment, was extended to the fifteenth day. 2009 California Code of Civil Procedure - Section 1084-1097 :: Chapter 2. %%EOF https://legal-dictionary.thefreedictionary.com/peremptory+writ+of+mandate, Dictionary, Encyclopedia and Thesaurus - The Free Dictionary, the webmaster's page for free fun content, Perfidy the act of one who has engaged his faith to do a thing, Periculosum est res novas et inusitatas inducere. All content on this website, including dictionary, thesaurus, literature, geography, and other reference data is for informational purposes only. . . In the record before us, there is no May 1 minute order, but on May 2 the matter was continued to May 5. Appeals Bd. The respondents then appearing as plaintiffs included Christina Hypolite and Bertha Hypolite, her guardian; Michael Jensen, a minor appearing through Rollan Eller as his guardian; and California Welfare Rights Organization, an unincorporated association, appearing with and through Catherine Jermany, its president. It applies whenever (1) a statute or rule of court or common law rule6 prescribes a period of notice or period within which to exercise a right or perform a duty and (2) the period is commenced by service by mail. THE COURT. As the result of proceedings then initiated by respondents, the court entered (1) an Order Certifying Class, which certifies the action to be a class action and identifies the class entitled to relief, and (2) an Amended Judgment(,) After Reversal On Appeal(,) Granting Peremptory Writ of Mandate. As amended, the judgment awards the benefits in question to the two minor respondents and other members of the class retroactively from the date the action was commenced, orders a procedure whereby the other members of the class are to be given notice of their entitlement to benefits and their claims therefor are to be processed, and further awards attorneys' fees to counsel for respondents. Peremptory Writ Law and Legal Definition | USLegal, Inc. Cf. However, in certain cases, the court of appeal or Supreme Court may grant a 'peremptory writ in the first instance', granting the requested relief immediately. 701703, 706, 63 Cal.Rptr. 751), reversed the judgment, and remanded the cause to the trial court with directions to grant a peremptory writ of mandate. WebA imperatively writ of mandate, or mandamus, is a judicial writ (i.e. It was further alleged that a hearing had been held in Michael Jensen's case, but that a decision was pending, at that time. DEPT. ), As appellant concedes, the local rules cited are not binding upon any court other than the one which promulgated them. Under these circumstances, appellant may not be heard to complain of its timing on the present appeal. It provides that a peremptory challenge to the assignment of a judge for all purposes shall be made within 10 days after notice of the all purpose assignment3 (Emphasis added.) . (Citation.)' 12. 05/03/2021. &gy(H"Q ,SD3eUS^c CCP Section 1075 provides that, if the return of the writ is defective, the Court may order a further return to be made. A peremptory writ may issue after a hearing on an alternative writ or in the first instance (i.e., without any alternative writ). Chapter 2. Writ Of Mandate :: California Code of Civil This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. =A gRZ The answer to the real party's argument is that the notice required by section 170.6 is the notice prescribed by the chapter of which section 1013 is a part, including notice given by service by mail. ), While we are not bound by the federal decisions (as we are not bound by Rule 23, despite its usefulness in our trial courts as mentioned Supra), we must acknowledge the many sound reasons that a class action should ordinarily not be permitted to proceed to trial without a judicial determination that it properly be maintained as such. Puttin' On The Writs: 10 Tips For Petitioning For Calif. Appeal 6, 171 Cal.Rptr. . . (See text at fn. The stay previously issued shall be dissolved upon the finality of this decision. City of Alameda v The Superior Court of Alameda County . 711. . 235236.) 4135. PETITION FOR WRIT OF MANDATE San Diego County Superior Court Case No. It must be issued upon the verified petition of the party beneficially interested. On the present appeal, which the Director has taken from the amended judgment, he challenges the post-remand class-action certification in various respects, the retroactive award of benefits in all respects, and the award of attorneys' fees. (Cal. The Department has not been prejudiced in any respect by the late class-action determination. 339341, 112 Cal.Rptr. 9. [3], "The usual practice is for anyone desiring such an order is to file a petition for the alternative writ. hbbd``b`@D`} $@D9P?ADA1&FFa ?CW U/ ) Since it was served by mail to an address in California, the notice came within the purview of section 1013, subdivision (a), extending thereby the period within which the petitioners had a right to challenge Judge Cecil by five days. We have previously notified the parties that we were considering the issuance of a peremptory writ of mandate in the first instance, and afforded them an opportunity to oppose our doing so. (b) The appellate division of the superior court may grant a writ of mandate directed to the superior court in a limited civil case or in a misdemeanor or infraction case. Where the appellate division grants a writ of mandate directed to the superior court, the superior court is an inferior tribunal for purposes of this chapter. 321, 801 P.2d 1072; Camper v. Workers' Comp. 7. The California Rules of Court are similarly silent on this subject. . (1974) 11 Cal.3d 192, 203, 113 Cal.Rptr. Paragraph 5 reads: 5. 11, Ante) that retroactive payment of benefits would be ordered upon the authority of Bd. The adjudication hearing has not yet been completed. . 820821, 94 Cal.Rptr. The Reporter of Decisions is directed to publish the opinion except for part II of the Discussion. (Bd. Consequently, and while neither the usefulness of the Los Angeles County Superior Court rules nor the validity of the Supreme Court's admonition is subject to question, the details required by the former were not necessary here because of the accessibility and content of the Department's pertinent records. 9, Ante.) Contact us. ), (3) The Timing Of The Class-Action Certification, Appellant's contentions in this regard are directed to the unusual circumstance that no procedural steps were taken to establish the propriety of a class actionor to the contrary effectuntil after the substantive issue of the regulation's validity had been adjudicated to finality, as between the present parties, in the previous decision on appeal. Jay M. Bloom Victor Manuel Torres CA State Bar No. Here the period within which to exercise the right to file a peremptory challenge is 10 days after notice is given. 8586, 162 P.2d at p. 633 (emphasis added).) 22CV009959 and FACTUAL AND PROCEDURAL BACKGROUND The First Amended Complaint ., 14. Please try again. . %PDF-1.6 % (See fns. (2))2 is extended when notice of the assignment is served by mail (1013, subd. WebThe peremptory writ must be in a similar form, except that the words requiring the party to show cause why he has not done as commanded must be omitted. In some emergency situations or when there is no conceivable reason for the government not to follow the law, then the peremptory writ will be issued after a notice of hearing without the alternative writ. The court entered its original judgment in the Director's favor on August 2, 1972, denying all relief sought by respondents in their first amended complaint. [] (c) In any case in which the parent, guardian, or minor is represented by counsel and no objection is made to an order continuing any such hearing beyond the time limit within which the hearing is otherwise required to be held, the absence of such an objection shall be deemed a consent to the continuance. Always good stuff, Mr. Micheli. 797, 525 P.2d 701. Law Library for San Bernardino County WebThe writ of mandate is a type of extraordinary writ in the U.S. state of California. Because the Department's counsel was ill, the matter was continued for a few days. (a)). JEFF v. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES. The period is commenced by notice of the assignment. Some of the facts which follow in our text are similarly extracted from that decision, with some necessary repetition but without specific citation; others have been added. Accordingly, the Act's procedural requirements are not applicable here. endobj Peremptory Writ Of Mandate (Roberts v. Brian (1973) 30 Cal.App.3d 427, 429431, 106 Cal.Rptr. CCP Section 1108 provides that writs of review, mandate, and prohibition issued by the Supreme Court, a court of appeal, or a superior court, may, in the discretion of the court issuing the writ, be made returnable, and a hearing be held at any time. CCP Section 1087 provides that the writ is either alternative or peremptory. 668; People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 286 Cal.Rptr. '2, Specifically, respondents challenged the validity of the Department's Eligibility and Assistance Standards Regulation 41450.12 (hereinafter the regulation, or EAS s 41450.12). 113; Luna v. Carleson, supra, 45 Cal.App.3d 670 at p. 673, 119 Cal.Rptr. Form: Peremptory Writ of Mandate. CALIFORNIA BUSINESS COUNCIL FOR EQUAL OPPORTUNITY v. WILSON. The writ provides accordingly.15 Appellant contends (1) that this action is not within the ambit of the statute which authorizes an award of attorneys' fees in the litigation of public assistance benefits (s 10962),16 and (2) that the amounts awarded are excessive in respects involving the factwhich is undisputedthat each payee is a publicly-funded legal services organization. The Director's petition for a hearing by the California Supreme Court was denied on August 16, 1973. FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. . 340, which held that section 1013 did not apply to a local rule of court which commenced the prescribed period simply on notice. 360; Horn v. Swoap, supra, 41 Cal.App.3d 375 at p. 384, 116 Cal.Rptr. The California Rules of Court are similarly silent on this subject. FOOTNOTES 1 . 797, 525 P.2d 701; Harrison v. Board of Supervisors (1975) 44 Cal.App.3d 852, 861862, 118 Cal.Rptr. The email address cannot be subscribed. . (Trout v. Carleson, supra, 37 Cal.App.3d 337 at pp. . A court seldom issues a peremptory writ in the first instance . The trial court indicated in its memorandum decision (see fn. . [] In order to obtain a motion for a continuance of the hearing, written notice shall be filed at least two court days prior to the date set for hearing, together with affidavits or declarations detailing specific facts showing that a continuance is necessary, unless the court for good cause entertains an oral motion for continuance. Contact us. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. We have read and considered the August 1, 1997 letter of respondent juvenile court. 282) is not limited in the absence of an explicit enactment which so states. . 13. We may therefore treat the former as an interlocutory order which is reviewable upon the appeal taken from the latter. Paragraph 5 of the amended judgment orders that members of the class shall be paid all those monies withheld Pursuant to EAS s 41450.12 from May 15, 1972 . (See 1 Witkin, Procedure (op. 5 add 6, Ante.) Fields (Petitioner) Act (CEQA). On February 8, 2021, after OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE. The section is based upon the equitable doctrine of virtual representation which rests upon considerations of necessity and paramount convenience, and was adopted to prevent a failure of justice. (Citations.) The decision by Division One of this court, reversing the judgment and remanding the cause to the trial court with directions to grant a peremptory writ of mandate, was filed on June 18, 1973. 16, Ante); that section 1094.5 provides for review of an administrative decision reached after a hearing conducted in the pursuit of an administrative remedy (see Gong v. City of Fremont (1967) 250 Cal.App.2d 568, 572, 58 Cal.Rptr. 8, Ante (emphasis added here).) the Court must first determine whether this is a certifiable class action., On June 11, after a hearing, the trial court filed a memorandum decision (an Opinion Memorandum, hereinafter quoted) in which it pronounced its determinations favorable to respondents on both motions. supra) Courts, ss 128129, pp. endstream endobj startxref Notice may be given by personal service or by mail. Upon the basis of these and other allegations in their first amended complaint, and in the prayer thereof, respondents sought a declaratory judgment to the effect that the regulation was invalid; an injunction restraining the Director from enforcing it; a peremptory writ of mandate which, as prayed, would have required him to pay AFDC benefits, retroactively from June 17, 1968, to plaintiffs and all members of their class'; and reasonable attorney's fees' and costs. CCP Section 1088.5 states that, in a trial court, if no alternative writ is sought, proof of service of a copy of the petition need not accompany the application for a writ at the time of filing, but proof of service of a copy of the filed petition must be lodged with the court prior to a hearing or any action by the court. WebA peremptory writ of mandamus is an absolute and unqualified writ to the defendant to do the act in question. ), The argument fails because the premise does. (See Id., s 1781; Vasquez v. Superior Court, supra, 4 Cal.3d 800 at p. 817, 94 Cal.Rptr. Review our latest version here. Rapid Transit Dist. 15. (1992) 3 Cal.4th 679, 12 Cal.Rptr.2d 101, 836 P.2d 888; Citicorp North America, Inc. v. Superior Court (1989) 213 Cal.App.3d 563, 261 Cal.Rptr. 388 0 obj <> endobj SUPERIOR COURT OF CALIFORNIA County of - County of . ), It must follow, according to the argument, that the affected individuals cannot be represented in a class action because such action may not be maintained, for lack of the requisite community of interest in point of fact, where the right of each of recover is based on a separate set of facts applicable only to him. (Vasquez v. Superior Court, supra, 4 Cal.3d 800 at p. 809, 94 Cal.Rptr. County Counsel informed the clerk of this court by telephone that no response to the petition would be filed. 385, 488 P.2d 953; Villa v. Hall (1971) 6 Cal.3d 227, 231, 237, 98 Cal.Rptr. A new order was issued by the Presiding Judge of the Superior Court on August 29, 1996, assigning Judge Thomas Cecil to the case as a judge for all purposes. 2022 2021 2020 2019 2018 Sundry previous versions. Christina HYPOLITE, a minor, by Bertha Hypolite, her guardian, et al., Plaintiffs and Respondents, v. Robert B. CARLESON, Director, Department of Social Welfare, State of California, Individually and in his official capacity, Defendant and Appellant. .'. 633.) (Id., at pp. DISCUSSION. On the other hand, a practical application of the theory to a class of claimants requires that retroactive relief be granted back to a single date which has some relevance and which is feasible, in practical fact, when applied to the class under the realities of the situation. The foregoing principles have been persistently reiterated and appliedin favor of a class action or otherwisein subsequent decisions. This brings us to the real party's primary argument. [] (5) The court shall state in its order the facts requiring any continuance that is granted. (Italics added. 11, Ante), the trial court's statement of its reasons for selecting May 15, 1972,14 are supported by the record in point of fact. 2022 2021 2020 2019 2018 Sundry previous versions. x]rF}wa- pIe)q6[Imv"A`@PZQ~s{ H`HQlezto>Mf Mjj_7/cQfMQ7v XUM^AR.X"S_>w3yBY 196, 2. Nothing in the case law impugns this analysis. 28-014 28.14. 782, a case arising prior to the 1995 specific exception amendment to section 1013. Welfare v. County of L.A., supra, 27 Cal.2d 81 at pp. order) to any governmental body, government official, or lower court requiring that the they perform an act or cease to act where the court finds that an official law, duty or judgment requires them to do so. ), The Amount due an individual claimant may vary, depending upon the date of denial or termination in his case and the conceivable event that subsequently-changed circumstances interrupted his eligibility for reasons not involving his parents' domestic situation and EAS s 41450.12. 2009 California Code Code of Civil Procedure 1087 Contents; alternative writ; peremptory writ Code of Civil Procedure 1088 Issuance of writ in first instance; form; notice; service; hearing required o Ch. n. a final order of a court to any governmental body, government official or a lower court to perform an act the court finds is an official duty required by law. The implication of the argument is that the 1980 addition, which provided for an additional period of notice, also subtracted the provision for extension of the period within which to exercise a right or perform a duty. The entity first named appeared as attorney of record on the complaint initially filed on May 15, 1972. stream (See Poster v. Southern Cal. . The regulation had been adopted by appellant pursuant to his authority, as Director of the Department, to formulate regulations in aid of administering AFDC. . General Manager & Advertising: Kevin Sanders, Globe Quiz on California Statutory Construction Principles, Globe Quiz on California Political and Elections Laws, Official Reporter of California Appellate Court Decisions, California Statutes Utilizing Court Decisions, Red Herring Alert: Comparing California and Japan High Speed Rail Falls on its Face. WebThe People filed a petition for writ of mandate in this court seeking an order requiring Judge Couillard to grant the section 170.6 motion and requesting a stay of the action.
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