Brown v. City of Inglewood CA2/1 ( 2023 )

Filed 5/31/23 Brown v. City of Inglewood CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
WANDA M. BROWN, B320658
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. 21STCV30604)
v.
CITY OF INGLEWOOD et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Deirdre H. Hill, Judge. Affirmed in part
and reversed in part.
Engstrom, Lipscomb & Lack, Walter J. Lack, Richard P.
Kinnan and Christopher A. Kanne for Defendants and
Appellants.
Miller Barondess, Mira Hashmall and Colin H. Rolfs for
Plaintiff and Respondent.
Respondent Wanda Brown has served as the elected
treasurer for appellant, the City of Inglewood (the City),
since 1987. Brown sued the City and several members of the
Inglewood City Council1 (the council), alleging that after she
reported concerns about financial improprieties, the City and the
individual defendants defamed and retaliated against her. She
alleged causes of action for (1) defamation; (2) violation of Labor
Code section 1102.5, subdivisions (b) and (c),2 which prohibit
retaliation against an employee based on the employee reporting
or refusing to participate in what the employee reasonably
believes to be illegal activity by the employer (the section 1102.5
retaliation claim); and (3) intentional infliction of emotional
distress (IIED), based both on the alleged retaliation and the
alleged defamation. The City and the individual defendants
filed a joint special motion to strike the complaint as a strategic
lawsuit against public participation, or SLAPP, under the anti-
SLAPP statute (Code Civ. Proc., § 425.16). The court granted
the motion in part, but denied it as to the section 1102.5
retaliation claim and the retaliation-based IIED claim against
all defendants. Defendants appeal, arguing the court incorrectly
denied the anti-SLAPP motion as to the retaliation-based claims
against the individual defendants. For reasons we discuss below,
we hold that the retaliation-based claims against the individual
defendants arise from protected conduct under the anti-SLAPP
statute, and that the court should have stricken these claims.
1 Specifically, respondents Mayor James T. Butts, Jr.,
Alex Padilla, George Dotson, Eloy Morales, and Ralph Franklin
(collectively, the individual defendants).
2Unless otherwise indicated, all unspecified statutory
references are to the Labor Code.
2
In all other respects, we affirm the court’s ruling on the
anti-SLAPP motion.
FACTS AND PROCEEDINGS BELOW
A. Brown’s Lawsuit Against Defendants
In her first amended complaint (the FAC), Brown alleged
she had “reported to [individual defendants] that she had
discovered facts indicating that [individual defendants] were
mishandling the City’s finances, including an improper payment
of nearly [$100,000] to a City [c]ontractor,” and “improperly
fail[ing] to accurately report to the public the true financial
health of the City.” She alleged that, as a result of her reporting
these concerns, defendants took various adverse actions against
her, including reducing her duties and authority as treasurer,
reducing her salary by 83 percent, taking away her seat at the
council meetings, and temporarily locking her and her staff
out of their offices. Brown further alleged that, at a council
meeting, one of the individual defendants, Mayor Butts, offered
a “defamatory pretextual reason for taking away [Brown’s] duties
and reducing her salary,” namely that she “[did] not know the
procedure for handling bad debts, [and that] he had no choice but
to reduce her duties and her salary.”
B. Defendants’ Anti-SLAPP Motion and Related
Evidence
Defendants filed a motion to strike all causes of action in
the FAC under the anti-SLAPP statute. The anti-SLAPP statute
is “designed to protect defendants from meritless lawsuits that
might chill the exercise of their rights to speak and petition on
matters of public concern. [Citations.] To that end, the statute
authorizes a special motion to strike a claim ‘arising from any
3
act of that person in furtherance of the person’s right of petition
or free speech under the United States Constitution or the
California Constitution in connection with a public issue.’
(§ 425.16, subd. (b)(1).)” (Wilson v. Cable News Network, Inc.
(2019) 7 Cal.5th 871, 883–884.) Such acts are referred to in
anti-SLAPP parlance as “protected activity.” (Park v. Board
of Trustees of California State University (2017) 2 Cal.5th 1057,
1061 (Park).)
“Litigation of an anti-SLAPP motion involves a two-step
process. First, ‘the moving defendant bears the burden of
establishing that the challenged allegations or claims “aris[e]
from” protected activity in which the defendant has engaged.’
[Citation.] Second, for each claim that does arise from protected
activity, the plaintiff must show the claim has ‘at least “minimal
merit.” ’ [Citation.] If the plaintiff cannot make this showing,
the court will strike the claim.” (Bonni v. St. Joseph Health
System (2021) 11 Cal.5th 995, 1009 (Bonni).)
Defendants’ motion argued the FAC alleged claims
arising from conduct that falls into two of the statutorily
enumerated categories of protected activity: “any written or
oral statement[s] or writing made in connection with an issue
under consideration or review by a legislative, executive, or
judicial body, or any other official proceeding authorized by law”
(§ 425.16, subd. (e)(2)), and “any other conduct in furtherance
of the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public
issue or an issue of public interest.” (§ 425.16, subd. (e)(4).)
Specifically, the motion argued that each of Brown’s claims
arose from voting and other legislative actions of the individual
defendants and statements they made at the council meetings
4
in connection therewith. Defendants’ motion further argued that,
for various reasons, Brown could not demonstrate that her claims
had minimal merit, including that the claims were barred by
government discretionary act immunity, that section 1102.5 does
not permit individual liability, and that Brown was neither an
“employee” for purposes of section 1102.5, nor had she reported
conduct that she reasonably suspected to be illegal, both of which
are required under section 1102.5.
1. Evidence in support of and opposition to
the anti-SLAPP motion
Defendants primarily supported their anti-SLAPP motion
with the following evidence: (1) excerpts from the City charter
and Municipal Code; (2) City ordinances and a City policy
adopted by a vote of the individual defendants that, collectively,
reduced Brown’s salary, investment authority, and duties, as
alleged in the FAC; (3) excerpts of transcripts from various
council meetings, including excerpts reflecting council votes
passing the relevant ordinances and policy;3 and (4) declarations.
3 At Brown’s request, the court took judicial notice of the
first two categories of documents listed above, but declined to
take judicial notice of the council meeting transcripts. On appeal,
defendants contend this ruling was in error, and Brown raises
no argument to the contrary. We need not resolve this issue,
however, because regardless of whether the court erred in
partially denying the request for judicial notice, the transcripts
were attached to a declaration in support of the motion, and the
anti-SLAPP statute expressly requires that, in its anti-SLAPP
analysis, the court “shall consider the pleadings, and supporting
and opposing affidavits stating the facts upon which the liability
or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).)
5
Under the City charter, the council is the City’s legislative
body, and all powers of the City are vested in and exercised
by the council, which consists of the mayor and four council
members. The City treasurer is not a member of the council.
Council meetings are open to the public. The council has the
authority to “establish rules and regulations for the conduct of
its proceedings” and the mayor is “responsible for maintaining
the order and decorum of meetings.” The mayor, council
members, clerk, and treasurer are all publicly elected. The
council has the authority to fix the compensation of any City
officer except the mayor and council members.
In fall 2022, the council passed two ordinances included
in the documents supporting the anti-SLAPP motion. First,
in September 2022, it passed Ordinance No. 20-16 regarding
“Assignment of City Duties” that, inter alia, transferred general
auditor responsibilities once held by the treasurer to the City
clerk, reduced the maximum amount of funds the treasurer
was permitted to manage to $50,000, and adopted a revised
investment policy.4 In October 2022, it passed a second
ordinance, “Salary Ordinance for Fiscal Year 2020–2021,”
which adjusted the salaries of a number of positions, including
the treasurer’s salary, which it reduced by over 80 percent as
compared to the previous year.
Declarations from defendant Mayor Butts and the City’s
manager, Artie Fields, addressed allegations in the FAC that
Butts had denied Brown a seat on the dais during council
meetings and that the individual defendants had blocked
Brown’s access to her office. Butts’s declaration stated that
4 The defendants also submitted the policy itself in support
of the anti-SLAPP motion.
6
the City treasurer “is not a member of the . . . council and so
has no standing to sit on the dais during meetings of the . . .
council,” but that “a previous mayor had decided to let the
treasurer have a seat on the dais during meetings, and [Butts]
[had initially] continued that practice.” (Capitalization omitted.)
Butts continued that, in early 2020, Brown “began to disrupt
meetings of the . . . council” and in July 2020 Butts “exercised
[his] discretion as chair of the council and revoked the privilege
of the treasurer to be seated at the dais during meetings of
the . . . council.” (Capitalization omitted.)
The Fields declaration stated that, in October 2020,
“Brown’s proximity badge was deactivated because she had
failed to present a negative COVID-19 test confirmation to the
[C]ity, as required” and, as a result, Brown was locked out of
her office at City Hall. Fields declared “[t]his same action was
taken as to all personnel that did not provide a negative test
confirmation. . . . Brown’s proximity badge was reactivated once
she provided a negative test confirmation.”
The transcripts from council meetings reflect the votes
by the individual defendants adopting the ordinances and
policy noted above, Butts’s allegedly defamatory statements,
and Brown’s statements criticizing the council and Butts.
In opposing the defendants’ anti-SLAPP motion, Brown
submitted, inter alia, a declaration and supporting exhibits in
an effort to establish her status as an “employee” for purposes
of section 1102.5. Specifically, Brown offered W-2 federal tax
forms she had received from the City, which identify her as an
“[e]mployee[ ]” and her biweekly pay stub, which identifies
various employee benefits such as health benefits and
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reflects a deduction from her regular earnings for “workers[’]
comp[ensation].” (Boldface and capitalization omitted.)
2. Court’s ruling on anti-SLAPP motion
The court granted the defendants’ anti-SLAPP motion
with respect to the defamation claim and the defamation-based
portion of the IIED claim. The court denied the motion as to the
section 1102.5 retaliation claim and retaliation-based portion of
the IIED claim, finding these claims did not arise from “protected
activity.” The trial court explained, “[T]he individual defendants’
conduct in their decision making or voting is not the gravamen
of the [retaliation] claim.” The trial court concluded that,
instead, “the activities upon which the claim rests, which are
adverse actions, are the reduction in her salary and duties and
being locked out of her office and computer.”
Defendants timely appealed the court’s partial denial of
their anti-SLAPP motion.
C. Additional Procedural History
Defendants also filed a demurrer to the FAC, which the
court heard on the same day as the anti-SLAPP motion. The trial
court sustained defendants’ demurrer with leave to amend as to
the claims that remained in litigation following the court’s anti-
SLAPP ruling (section 1102.5 retaliation claim and retaliation-
based IIED claim). In so ruling, the court concluded that the
FAC did not sufficiently allege that Brown had “disclosed to a
person with authority over her or to an employee with authority
to investigate a concern that certain illegal activity had occurred,
and that she had a reasonable belief that Mayor Butts[ ] violated
[the] law,” a necessary element of Brown’s section 1102.5 claim.
The court further concluded that the remaining retaliation-based
8
IIED claim was derivative of the retaliation claim and failed
for similar reasons, in addition to being barred because the
Workers’ Compensation Act (§ 3200 et seq.) provides the
exclusive remedy for any such injury.5 (See § 3601, subd. (a)
[workers’ compensation is “the exclusive remedy for injury or
death of an employee against any other employee of the employer
acting within the scope of his or her employment”].)
Following the demurrer ruling, Brown voluntarily
dismissed (without prejudice) defendants Dotson, Padilla,
Franklin, and Morales and filed a second amended complaint
asserting her claims under section 1102.5 and for retaliation-
based IIED against the City and Butts.
DISCUSSION
Defendants argue that the trial court reversibly erred
in denying their anti-SLAPP motion as to the retaliation-
based causes of action against the individual defendants.
Our review is de novo. (Sylmar Air Conditioning v. Pueblo
Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1056.)
A. Anti-SLAPP Analytical Framework
In the first step in the anti-SLAPP analysis, the moving
defendant bears the burden of “identify[ing] what acts each
5 The court also addressed arguments, likewise raised
on appeal in connection with the second prong of the anti-
SLAPP analysis, that the retaliation-based claims were
barred by discretionary act immunity under Government Code
section 820.2 and government act immunity under Government
Code section 821. Finally, the court noted that the case law
was unclear as to whether section 1102.5 provided a basis for
imposing liability on an individual, nonemployer defendant.
9
challenged claim rests on and to show how those acts are
protected under a statutorily defined category of protected
activity.” (Bonni, supra, 11 Cal.5th at p. 1009.) If the court
determines that relief is sought “based on allegations arising
from activity protected by the statute, the second step is
reached” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral)),
and “the burden shifts to the plaintiff to demonstrate that each
challenged claim based on protected activity is legally sufficient
and factually substantiated.” (Ibid.) This step involves a
“summary-judgment-like procedure.” (Varian Medical Systems,
Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) If the plaintiff fails
to make the requisite showing to support the claim, “the claim
is stricken.” (Baral, supra, at p. 396.)
B. The Retaliation-Based Claims Against the
Individual Defendants Arise from Protected
Activity (Anti-SLAPP Analysis Step One)
1. Identifying protected activity
We agree that the individual defendants’ votes adopting
two ordinances and a policy that, collectively, required the
allegedly retaliatory reduction in Brown’s salary, authority and
duties, are protected activity. The California Supreme Court
held in City of Montebello v. Vasquez (2016) 1 Cal.5th 409 that,
because “votes taken after a public hearing qualify as acts in
furtherance of constitutionally protected activity” (id. at p. 427,
italics omitted), “elected officials may assert the protection of
[the anti-SLAPP statute] when sued over how they voted.” (Ibid.,
italics added; id. at pp. 422–423 [in lawsuit against individual
council members, “the council members’ votes, as well as
statements made in the course of their deliberations at the city
council meeting where the votes were taken, qualify as ‘any
10
written or oral statement or writing made before a legislative . . .
proceeding.’ (§ 425.16, subd. (e)(1).)”].) Brown, however, argues
that we should recharacterize this activity as the individual
defendants effectively reducing her salary, authorities and
duties. But the individual defendants have no legal ability to
change the scope of Brown’s salary, authority, or duties; they
can only vote on ordinances and policies on these topics. After
the council passes an ordinance or adopts a policy, the acts
implementing the ordinance or policy—for example, actually
paying the treasurer less or permitting her to invest less money—
are acts of the City, not of the individual council members. Thus,
under Vasquez, the individual defendants’ involvement in the
reduction of Brown’s salary, authority, and duties consisted solely
of the protected act of voting at council meetings.
The case on which Brown primarily relies in arguing to
the contrary, Whitehall v. County of San Bernardino (2017) 17
Cal.App.5th 352 (Whitehall), is inapposite, because it addresses
an anti-SLAPP motion to strike claims against a public entity,
not claims against individual public officials. In Whitehall,
the court concluded that a retaliation claim against the County
based on the County’s allegedly retaliatory act of placing an
employee on leave did not arise from protected activity, even
though the County supervisor’s investigation that preceded
the leave was protected activity. (Id. at p. 362.) The court
in Whitehall explained that the “act of placing plaintiff on
administrative leave, with the intention of firing her, did not
arise from the County’s protected activity. . . . Had plaintiff
sued the specific supervisors who conducted the investigation
on behalf of the County, a clear case of a SLAPP suit would
have been established. But plaintiff challenged the retaliatory
11
employment decision, not the process that led up to that point.
The County’s act of placing plaintiff on administrative leave, with
the intention of terminating her employment, was not an exercise
of its petitioning or free speech rights.” (Ibid., italics added.)
Because the only portion of the anti-SLAPP ruling at issue on
appeal involves claims against the individual defendants, not
the City, Whitehall is of no assistance to Brown.
Thus, the individual defendants’ role in reducing Brown’s
salary and job duties was protected activity.
2. “Arising from” analysis
We further conclude that the retaliation-based claims
against the individual defendants arise from the individual
defendants’ protected voting activity, as opposed to that activity
“merely provid[ing] context” for those claims. (Baral, supra,
1 Cal.5th at p. 394.) To determine whether a claim arises
from protected activity, we consider whether the protected
activity is necessary to satisfy any of the elements of the claim.
(Park, supra, 2 Cal.5th at p. 1063.) One element of Brown’s
section 1102.5 claim is that defendants took an “ ‘ “adverse
employment action” ’ ” against her as retaliation for her reporting
concerns about financial improprieties. (Morgan v. Regents of
University of California (2000) 88 Cal.App.4th 52, 69 [reciting
elements of section 1102.5 claim]; see § 1102.5, subds. (b) & (c).)
Brown alleges that the same allegedly retaliatory adverse actions
also satisfy the “ ‘ “extreme and outrageous conduct” ’ ” element
of her IIED claim. (Unterberger v. Red Bull North America, Inc.
(2008) 162 Cal.App.4th 414, 423 (Unterberger).) Through the
retaliation-based claims against the individual defendants,
Brown alleges such adverse action and extreme and outrageous
conduct primarily consisted of the City’s reduction in her salary,
12
duties, and authority, something the individual defendants only
engaged in via protected voting activity.
Brown also alleges the individual defendants engaged in
retaliatory adverse actions and “extreme and outrageous conduct”
by removing Brown from the dais at council meetings, such that
even if the individual defendants’ voting conduct is protected
activity, she need not rely on it to satisfy these elements of her
claims. But removal from the dais cannot alone satisfy these
elements of Brown’s claims, because it is not sufficiently material
(see Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028,
1036 [defining an adverse employment action for purposes of
a retaliation claim under the California Fair Employment and
Housing Act (the FEHA) as requiring that the adverse action
“materially affect[ ] the terms and conditions of employment”]),6
and it is not an action “ ‘ “so extreme as to exceed all bounds of
that usually tolerated in a civilized community.” ’ ” (Unterberger,
supra, 162 Cal.App.4th at p. 423.) Thus, Brown must rely on the
protected voting activity of the individual defendants discussed
above to satisfy these elements of her retaliation-based claims
against the individual defendants, meaning the claims arise
6 Although this definition was developed in the context of
FEHA retaliation, courts apply it in the context of section 1102.5
claims as well. (See Malais v. Los Angeles City Fire Dept. (2007)
150 Cal.App.4th 350, 357 [applying FEHA definition of adverse
employment action to a section 1102.5 claim, and noting that
“[m]inor or relatively trivial adverse actions . . . that, from an
objective perspective, are reasonably likely to do no more than
anger or upset an employee . . . are not actionable”].)
13
from protected activity.7 (Park, supra, 2 Cal.5th at p. 1063.)
Accordingly, we analyze these claims under the second step of
the anti-SLAPP framework.
C. Legal Sufficiency of Retaliation-Based Claims
Against Individual Defendants (Anti-SLAPP
Analysis Step Two)
In the second step of the anti-SLAPP analysis, we consider
whether Brown has “ ‘ “ ‘demonstrate[d] that [the retaliation-
based claims against the individual defendants] [are] both legally
sufficient and supported by a sufficient prima facie showing of
facts to sustain a favorable judgment if the evidence submitted
by the plaintiff is credited.’ ” ’ ” (Monster Energy Co. v. Schechter
(2019) 7 Cal.5th 781, 791.)
1. Section 1102.5 retaliation claim against
individual defendants
Defendants argue that the section 1102.5 retaliation claim
is not legally sufficient, because Brown is not an “employee” for
the purposes of that statute. We agree.
Brown alleges the individual defendants violated
subdivisions (b) and (c) of section 1102.5. By their own terms,
these sections protect only “employee[s]” from certain types of
retaliation by “[a]n employer, or any person acting on behalf
of the employer.” (§ 1102.5, subds. (b) & (c).) Section 1106
addresses the definition of the term “employee” in this context:
“For purposes of Section[ ] 1102.5 [and other enumerated
7 Because the removal of Brown from the dais was not
sufficiently material, we need not and do not consider whether, as
defendants argue, removing Brown from the dais was protected
activity as well.
14
sections] ‘employee’ includes, but is not limited to, any individual
employed by . . . any . . . city.” (§ 1106.) Notably, the Legislature
did not reference elected officials as falling within the scope
of the term “employee” for the purposes of section 1102.5. Yet
when the Legislature intended to include elected officials within
the scope of the term “employee” elsewhere in the code—namely,
in defining the term for purposes of workers’ compensation—
the Legislature expressly defined the term “ ‘[e]mployee’ . . .
[to] include . . . [¶] . . . [¶] . . . [a]ll elected . . . paid public
officers.” (§ 3351, subd. (b) [section of Workers’ Compensation
Act providing: “ ‘Employee’ means every person in the service
of an employer under any appointment or contract of hire or
apprenticeship, express or implied, oral or written, whether
lawfully or unlawfully employed, and includes . . . [¶] . . . [¶] . . .
[a]ll elected and appointed paid public officers”].) The plain
language of these statutes thus unambiguously includes “elected
officials” in the definition of “employee” for purposes of workers’
compensation, but not within the definition of “employee” for
purposes of section 1102.5. Because the plain language of a
statute is the best indication of the Legislature’s intent (see
Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977 (Wilcox)), this
language reflects the Legislature’s decision to provide elected
officials the benefits of the Workers’ Compensation Act, but to
deny them the protections of section 1102.5.
Brown argues that “[i]t is reasonable and sensible for
California courts to . . . classify elected officials as employees
[under section 1102.5],” just as the California Legislature did in
the context of workers’ compensation and the Internal Revenue
Service does for purposes of federal tax law. (See 26 U.S.C.
§ 3401(c) [defining “employee” under the Internal Revenue
15
Code to include “an officer, employee, or elected official”].)
This argument flies in the face of basic maxims of statutory
interpretation, because it asks us to interlineate section 1106
with words that the Legislature chose not to include—words
which, based on section 3351, the Legislature is clearly capable
of employing. (See Blankenship v. Allstate Ins. Co. (2010) 186
Cal.App.4th 87, 94 [“the Legislature’s omission of a term in a list
of terms indicates the Legislature did not intend to include the
omitted term”].)
Brown also urges us to look to case law defining “employee”
for the purposes of section 1102.5, specifically cases incorporating
the “common law definition of employee” for this purpose.
(Bennett v. Rancho California Water Dist. (2019) 35 Cal.App.5th
908, 927.) We need not resort to judicial interpretations of the
definition the Legislature provided when that definition is clear
and unambiguous. (See Wilcox, supra, 21 Cal.4th at p. 977
[plain, unambiguous language of a statute is the best indicator
of legislative intent in statutory interpretation].) Accordingly,
Brown’s section 1102.5 retaliation claim against the individual
defendants fails the second prong of the anti-SLAPP analysis,
and the court erred in denying the anti-SLAPP motion as to that
claim.
2. Retaliation-based IIED claim against the
individual defendants
Brown’s IIED claim against the individual defendants fails
as a matter of law, because it is “ ‘subsumed under the exclusive
remedy provisions of workers’ compensation.’ ” (Miklosy v.
Regents of University of California (2008) 44 Cal.4th 876, 902.)
As noted above, unlike the definition of “employee” for purposes
of section 1102.5, the definition of “employee” for purposes of
16
workers’ compensation includes “[a]ll elected . . . paid public
officers.” (§ 3351, subd. (b).) Where, as here, purportedly
wrongful conduct occurred at the worksite in the normal course,
“workers’ compensation is plaintiffs’ exclusive remedy for any
injury that may have resulted.” (Miklosy, supra, at p. 902.)
Because we conclude the retaliation-based IIED claim against
the individual defendants is not viable on this basis, we need not
reach the other bases raised by the parties.
17
DISPOSITION
The court’s order on defendants’ anti-SLAPP motion
is reversed to the extent it denies the motion as to Brown’s
section 1102.5 retaliation claim against the individual defendants
and Brown’s retaliation-based IIED claim against the individual
defendants. In all other respects, the order regarding the
anti-SLAPP motion is affirmed.
The parties shall bear their own costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
WEINGART, J.
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