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Date: 09-19-2019

Case Style:

Abdulmouti Alaama v. Presbyterian Intercommunity Hospital, Inc.

Case Number: B288360

Judge: Seagul, J.

Court: California Court of Appeals Second Appellate District, Division Seven on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Alan I. Kaplan

Defendant's Attorney: Mark A. Kadzielski and Joelle A. Berle

Description: Business and Professions Code section 809.11 requires a
hospital peer review board to give a physician notice and the
right to request a hearing when the hospital revokes or
terminates the physician’s membership, staff privileges, or
employment for a “medical disciplinary cause or reason.” In 2016
Presbyterian Intercommunity Hospital, Inc., doing business as
PIH Health Hospital-Whittier, and PIH Health Physicians
(collectively, the hospital) terminated Dr. Abdulmouti Alaama’s
privileges and staff membership without giving him a hearing.
Dr. Alaama filed a complaint that included causes of action
seeking a writ of administrative mandate, alleging, among other
things, the hospital denied him the right to a hearing before
terminating his privileges. The trial court denied the petition.
Because the hospital terminated Dr. Alaama’s privileges and
staff membership for a “medical disciplinary cause or reason,” we
A. Dr. Alaama Misbehaves in the Hospital
Dr. Alaama was not always on his best behavior. In April
2008 the hospital warned Dr. Alaama that he had to work
cooperatively with doctors, nurses, and staff at the hospital and
that he would be subject to discipline if he yelled at, verbally
abused, or displayed any “physically inappropriate and
1 Undesignated statutory references are to the Business and
Professions Code.
unprofessional behavior” toward hospital patients or employees.
In August 2010 the hospital placed Dr. Alaama on probation for
one year “because of his inappropriate and unprofessional
behavior directed towards an anesthesiologist and the nursing
staff” during a medical procedure.
But things did not improve. In March 2012 Dr. Alaama
“yelled, verbally abused, physically hit, and displayed physically
inappropriate and unprofessional behavior” toward a hospital
employee. In April 2012 he “continued with a procedure on a
patient whose blood pressure remained dangerously high, despite
repeated requests by the anesthesiologist to abort the procedure.”
Dr. Alaama acknowledged he had “a pattern of engaging in
unprofessional, disruptive, and harassing behavior.”
B. Dr. Alaama Signs a Behavioral Agreement
In April 2012 Dr. Alaama signed a written contract with
the hospital titled “Behavioral Agreement,” in which he agreed to
comply “in all respects” with the medical staff and hospital
bylaws, rules, regulations, and policies. As a condition to
retaining his medical privileges at the hospital, Dr. Alaama
agreed to comply with a list of “Specific Behavioral
Requirements.” For example, Dr. Alaama agreed not to “make
any demeaning, discourteous, disrespectful, harassing, or profane
statements, requests or demands” to any of the nurses,
administrative staff members, or other employees at the hospital,
including “name calling, profanity, sexual comments or
innuendos, and/or racial, ethnic, or sexual jokes.” He also agreed
not to “shout or otherwise raise his voice, act in an aggressive or
abrasive manner, or engage in any type of verbally abusive
behavior,” including when he responded to anyone who called to
discuss patient issues or concerns. He further agreed not to
criticize anyone at the hospital “in front of or within earshot of”
anyone else, including making “disparaging statements regarding
an individual’s professional competence, comments that
undermine a patient’s trust in other caregivers at [the hospital],
and/or comments that undermine a caregiver’s self-confidence in
caring for patients.” And he agreed not to “touch, hit, slap or
otherwise engage in any physical behavior with” anyone at the
hospital, including “touching, punching, slapping, pushing,
shoving, smacking, inappropriate touching and/or throwing
instruments, charts, or other objects.”
Of particular relevance to this action, Dr. Alaama agreed in
paragraph 2.6 of the Behavioral Agreement that he would “be
readily available and exercise professional courtesy when called
upon to discuss a patient’s course of treatment or medical care”
and that he would “not exhibit any other inappropriate,
unprofessional, abusive or harassing behavior” on the hospital’s
premises, such as failing “to address the safety concerns or
patient care needs expressed by another caregiver” or failing “to
work collaboratively with other caregivers” at the hospital. He
also agreed in paragraph 2.8 of the agreement not to retaliate or
threaten to retaliate against anyone who reported behavior by
him that violated the agreement or the hospital bylaws, rules,
regulations, or policies. Dr. Alaama also acknowledged he
understood any further failure to comply with the standards of
the hospital medical staff would result in the “automatic
termination” of his medical staff privileges. The Behavioral
Agreement provided in paragraph 4.3 that, upon a finding by the
hospital medical executive committee Dr. Alaama violated the
agreement or hospital rules and regulations, his privileges would
be “automatically terminated.” Dr. Alaama agreed any “such
automatic termination shall not give rise to any substantive or
procedural rights under California Law” or the hospital’s bylaws.
The parties further agreed the Behavioral Agreement, “in and of
itself, does not require that a report be made to the Medical
Board of California or any other federal or state agency.”
C. Dr. Alaama Misbehaves in the Hospital Again
And yet, things did not improve. In particular, an incident
occurred in November 2015 that gave rise to the termination of
Dr. Alaama’s privileges at the hospital and, ultimately, this
A hospital patient was lying in a bed on his stomach,
“profusely vomiting” with his “face changing to shades of purple,”
after an endoscopic retrograde cholangiopancreatography
procedure. Two nurses and a gastrointestinal technician each
asked Dr. Alaama to move a cart where he was “documenting” so
they could move a bed into the room and turn over the patient.
Dr. Alaama “responded to each request with words to the effect
of, ‘No, they can wait.’” According to the nurses, Dr. Alaama
motioned with his left hand and waved away the nurses and
technicians without looking up from the computer screen he was
working at on the cart, as though he did not want to be bothered,
and “barked” repeatedly, “[T]ell them to wait.” One of the nurses
said that Dr. Alaama “showed no concern” for the patient’s needs
and put “himself first instead of the patient’s needs” and that
“Dr. Alaama’s conduct (focusing on his documentation and his
lack of cooperation) prevented staff from properly taking care of
the patient’s needs.” The other nurse said Dr. Alaama did not
properly address the patient’s needs, did not work collaboratively
with the staff, and did “what he wanted to do” without listening
to the nurses. After Dr. Alaama learned one of the nurses had
reported the incident, he asked the hospital not to assign that
nurse to his cases.
The hospital’s medical executive committee met in early
December 2015 to consider what to do about the November 2015
incident, as well as six other complaints filed against Dr. Alaama
between May 2013 and November 2015. The courses of action
the committee considered included requiring Dr. Alaama to
receive “behavior modification counseling” or take a “late career
practitioner examination,” updating the Behavioral Agreement to
include additional instances of misconduct and requiring
Dr. Alaama to “newly acknowledge his willingness to change,”
and deciding there were “already enough medical and behavioral
misadventure to proceed with termination from the medical staff
based upon article 4.3 . . . of the Behavioral Agreement.” The
committee also discussed “a number of anecdotal claims
concerning poor interaction with other physicians/staff, questions
regarding medical [judgment]/appropriateness of care given,” and
“other potential care issues.” The committee observed that
Dr. Alaama’s behavior “could be creating a ‘hostile workplace
environment,’” that he had “a long history of verbal abuse and
intimidation of hospital employees,” and that he had failed to
correct behavior he acknowledged was unacceptable.
A report prepared by the hospital’s human resource
department regarding the November 2015 incident stated the
nurses and technician “were concerned for patient safety and
were acting on [the anesthesiologist’s] comments to get the
patient a bed and get him on his back.” The report concluded
Dr. Alaama may have violated paragraph 2.6 of the Behavioral
Agreement by failing to address the safety concerns or patient
care needs expressed by other caregivers and paragraph 2.8 by
retaliating against one of the nurses who reported the November
2015 incident.
D. The Hospital Terminates Dr. Alaama’s Hospital Staff
Privileges and Membership
The hospital’s medical executive committee met again in
January 2016 and considered the report. The committee
members approved a motion finding Dr. Alaama had violated
paragraphs 2.6 and 2.8 of the Behavioral Agreement and
terminated his medical privileges at the hospital.
The next day the president and chief of staff of the hospital
wrote Dr. Alaama and informed him of the medical executive
committee’s decision. This letter stated the committee found
Dr. Alaama’s conduct in the November 2015 incident violated
paragraph 2.6 of the Behavioral Agreement by failing to address
safety concerns and patient care needs expressed by staff and
failing to work collaboratively with operating room staff. The
letter also stated the committee found Dr. Alaama violated
paragraph 2.8 of the Behavioral Agreement by retaliating against
the nurse who had reported the incident by “requesting that the
nurse not be scheduled to work on [his] cases in the future.” The
letter concluded by quoting paragraph 4.3 of the Behavioral
Agreement and stating “this termination is immediate, and does
not give rise to any substantive or procedural rights under
California law or the [hospital] Bylaws. Further, because this
action has not been taken for a ‘medical disciplinary cause or
reason,’ as that term is defined at California Business and
Professions Code Section 805, no report will be filed with the
Medical Board of California.”
E. Dr. Alaama Files This Action
Dr. Alaama filed this action in September 2016, asserting
two causes of action titled “administrative mandate,” one alleging
the hospital did not give him a hearing and one seeking a judicial
determination the Behavioral Agreement was unenforceable.
Dr. Alaama also alleged causes of action for injunctive relief,
defamation, and violation of the Americans with Disabilities Act.
The case was transferred from the individual calendar court to
the writs and receivers department for a hearing on the request
for a writ of administrative mandate, and the latter court set the
matter for trial and stayed all causes of action other than the
petition for writ of mandate.2
F. The Trial Court Denies Dr. Alaama’s Petition for Writ
of Administrative Mandate
Dr. Alaama argued he was entitled to a writ of
administrative mandate directing the hospital to restore his
privileges “until he has been granted a hearing to determine
whether he has in fact violated” the Behavioral Agreement. He
also argued the waiver of his procedural and substantive rights
in the agreement was unenforceable under applicable provisions
of the Business and Professions Code. Dr. Alaama claimed it
was “undisputed that he was not accorded a fair hearing, or
2 We augment the record to include the complaint and the
court’s February 15, 2017 and February 17, 2017 minute orders.
(See Cal. Rules of Court, rule 8.155(a)(1)(A).)
indeed any hearing, under [the hospital’s] bylaws or under
California law.”
The hospital argued “no administrative peer review hearing
was required under the circumstances, as [the hospital] did not
terminate Dr. Alaama’s staff membership or privileges for a
reportable ‘medical disciplinary cause or reason,’” which would
require a hearing, but instead terminated his privileges “for
breach of the Behavioral Agreement,” which did not. According
to the hospital, because Dr. Alaama lost his privileges because of
his “abusive and harassing behavior toward other physicians,
nurses, and Hospital employees,” the statutory prohibition of
“contractual waiver of peer review rights” did not apply. The
hospital contended a physician had a right to a hearing only
when a peer review body takes action that must be reported to
the California Medical Board, and because Dr. Alaama’s
termination for bad behavior was not a reportable event, he was
not entitled to a hearing.
At the hearing, the trial court stated the “threshold issue”
was whether the hospital could “terminate Dr. Alaama without a
hearing for breach of the [Behavioral Agreement].” The trial
court stated, “[Y]es, it can. If he was terminated for non-medical
reasons involving abusive or harassing behavior, then it would be
for breach of the agreement and he’s not entitled to a hearing.”
The problem the court expressed, however, was that it did not
“see abusive or harassing behavior” by Dr. Alaama. The court
therefore stated its tentative ruling was the November 2015
incident “cannot be described as harassing or abusive treatment
of the nurses as that term in commonly understood. As found by
the [medical executive committee, Dr.] Alaama simply refused on
multiple occasions to move from the cart where he was writing,
thereby placing his paperwork before the patient’s medical care,”
which was a reportable medical disciplinary cause or reason,
which required a hearing. The court also found Dr. Alaama’s
request the hospital not schedule a nurse to work with him was
not retaliation because “there is nothing wrong with a request
not to work with one’s accuser.”
The court, however, changed its mind during the course of
the hearing. The court stated that, if the nurses raised a concern,
and Dr. Alaama “just blew them off, then that would be a
[failure]-to-address safety concerns raised by the nurses.” Thus,
the court stated, it did not matter whether the concerns
expressed by the nurses were “correct. If they raised an issue to
Dr. Alaama and he failed to address it, that is breach of the
agreement,” even if the nurses’ concerns were not legitimate.
The court explained, “They are accusing him of harassment,”
which was “defined under the agreement as failing to respond to
a nurse’s concern about patient needs and safety. That is, [it]
doesn’t matter whether they’re right or wrong. If . . . they raise
an issue and he doesn’t respond to them, that is considered
harassment under the agreement. It doesn’t matter whether he
actually was causing a safety issue or patient care issue.” The
court ruled the Behavioral Agreement provided that “if you fail to
address an issue of patient care raised by a nurse, whether or not
it’s true, you’re guilty of harassing behavior . . . . I’m
withdrawing my tentative. The petition’s denied.”
The court subsequently filed a written order denying the
petition for writ of mandate and dismissing with prejudice
Dr. Alaama’s two causes of action for administrative mandate.
The court stated in its written order: “The Court finds that the
evidence in the administrative record establishes that
[Dr. Alaama] was terminated for a non-medical disciplinary
cause or reason because [his] termination was for breach of
[paragraph 2.6] the Behavioral Agreement. . . . Thus,
[Dr. Alaama] was not entitled to a hearing pursuant
to . . . section 809.1.”
A. The Trial Court’s Order Denying the Petition for Writ
of Administrative Mandate Is Appealable
The hospital argues the trial court’s order denying
Dr. Alaama’s petition for administrative mandate is “not
appealable because there remain three causes of action pending,”
namely, Dr. Alaama’s causes of action for injunctive relief,
defamation, and violation of the Americans with Disabilities Act.
Although the hospital acknowledges Dr. Alaama dismissed those
causes of action without prejudice, the hospital argues “a
dismissal without prejudice is insufficient because it does not
create a final judgment from which an appeal may be made . . . .”
According to the hospital, because Dr. Alaama “is still able to
revive his remaining causes of action,” the trial court’s order
denying Dr. Alaama’s petition “did not create a final judgment
subject to appeal.”
Well, yes and no. A voluntary dismissal, “unaccompanied
by any agreement for future litigation, does create sufficient
finality as to that cause of action so as to allow appeal from a
judgment disposing of the other counts. [Citation.] That is
because ‘a party’s voluntary dismissal without prejudice does not
come equipped by law with an automatic tolling or waiver of all
relevant limitations periods; instead, such a dismissal includes
the very real risk that an applicable statute of limitations will
run before the party is in a position to renew the dismissed cause
of action.’” (Kurwa v. Kislinger (2013) 57 Cal.4th 1097,
1105-1106; see Alki Partners, LP v. DB Fund Services, LLC
(2016) 4 Cal.App.5th 574, 589, fn. 6 [“Because the record does not
indicate the dismissal was accompanied by any agreement for
future litigation, the judgment is sufficiently final to be
appealable.”]; Walters v. Boosinger (2016) 2 Cal.App.5th 421, 427,
fn. 5 [dismissal without prejudice that “was not accompanied by
any agreement between the parties regarding future litigation”
was sufficient to “render the judgment appealable”]; Abatti v.
Imperial Irrigation Dist. (2012) 205 Cal.App.4th 650, 665 [“claims
that are dismissed without prejudice are no less final for
purposes of the one final judgment rule than are adjudicated
claims, unless . . . there is a stipulation between the parties that
facilitates potential future litigation of the dismissed claims”].)
There is no evidence or suggestion in the record of any
agreement for future litigation. To the contrary, Dr. Alaama
states he “waived [his] right to litigate the unresolved causes of
action.” Thus, the problem is not that Dr. Alaama dismissed the
three causes of action without prejudice. The problem is that he
dismissed the three causes of action after he filed a notice of
appeal. But even so, the trial court had jurisdiction to dismiss the
three remaining causes of action. (See Holloway v. Quetel (2015)
242 Cal.App.4th 1425, 1431, fn. 6 [“[a]n appeal from a
nonappealable order does not divest the trial court of
In any event, in his reply brief on appeal, Dr. Alaama
agreed to treat his requested dismissal of the three unadjudicated
causes of action as a request for dismissal with prejudice. “When
a party expressly waives on appeal the right to litigate an
unresolved cause of action that deprived the judgment as entered
of finality, the appellate court may give effect to the waiver by
amending the judgment to reflect a dismissal of that cause
of action with prejudice.” (Sullivan v. Delta Air Lines, Inc. (1997)
15 Cal.4th 288, 308-309; accord, Areso v. CarMax, Inc. (2011) 195
Cal.App.4th 996, 1002.)3
B. The Hospital Failed To Give Dr. Alaama a Hearing as
Required by Section 809.1
1. Standard of Review
The hospital contends Code of Civil Procedure section 1085
governing traditional mandate applies to Dr. Alaama’s petition
because “this case involves a dispute over a contract.” Even if it
did not, the hospital’s position finds support in Mileikowsky v.
Tenet Healthsystem (2005) 128 Cal.App.4th 531 (Mileikowsky),
overruled on a different ground in Mileikowsky v. West Hills
Hospital & Medical Center (2009) 45 Cal.4th 1259, 1273, where
the court stated that “[f]ailure to provide a hearing required by
law or regulation is remedied by a petition for traditional
mandate.” (Mileikowsky, at p. 554.) Dr. Alaama contends Code
of Civil Procedure section 1094.5 governing administrative
mandate applies to “the quasi-adjudicative decisions of private
hospital boards,” including the hospital’s decision to terminate
his staff privileges and membership without giving him a
hearing. (See Code Civ. Proc., § 1094.5, subd. (a) [statute applies
where a “writ is issued for the purpose of inquiring into the
3 We also treat the trial court’s order as a final and
appealable determination of the rights of the parties.
validity of any final administrative order or decision made as the
result of a proceeding in which by law a hearing is required to be
given”]; Delta Dental Plan v. Banasky (1994) 27 Cal.App.4th
1598, 1608 [“section 1094.5 . . . was intended to apply in all cases
where the subject decision is the product of a proceeding in which
a hearing and related procedural protections are required by
law,’” italics omitted].)
Under either statute, however, we independently review
the issue “whether the hospital’s determination was made
according to a fair procedure.” (Ellison v. Sequoia Health
Services (2010) 183 Cal.App.4th 1486, 1496; see Golden Day
Schools, Inc. v. Office of Administrative Hearings (2017) 8
Cal.App.5th 1012, 1020 [in mandamus proceedings “‘pure issues
of law are always subject to independent appellate court
review’”].) We also review de novo the application of a statute to
a set of an undisputed facts. (Department of Health Care Services
v. Office of Administrative Hearings (2016) 6 Cal.App.5th 120,
141; M & B Construction v. Yuba County Water Agency (1999) 68
Cal.App.4th 1353, 1359.)
2. The Hospital Terminated Dr. Alaama’s
Privileges and Membership for a “Medical
Disciplinary Cause or Reason”
Once a hospital appoints a physician to its medical staff,
the hospital may not take away the physician’s privileges or
terminate his or her staff membership “‘absent a hearing and
other procedural prerequisites consistent with minimal due
process protections.’” (Sahlolbei v. Providence Healthcare,
Inc. (2003) 112 Cal.App.4th 1137, 1146; see Economy v. Sutter
East Bay Hospitals (2019) 31 Cal.App.5th 1147, 1156 (Economy).)
Section 809 et seq. set forth a comprehensive procedure
governing adverse action by a hospital against a staff physician.
(Sahlolbei, at p. 1147.) “This procedure is mandatory for acute
care hospitals and must be incorporated into their bylaws.”
(Ibid.; see § 809, subd. (a)(8).) The hospital concedes section
809.1 applies to certain adverse actions against its member
physicians but argues the circumstances of Dr. Alaama’s
termination did not trigger section 809.1’s procedural safeguards.
Section 809.1 provides that a physician subject to a final
proposed action by a peer review body “for which a report is
required to be filed under Section 805” is entitled to written
notice of the action and to request a hearing. (§ 809.1, subds. (a),
(b)(3).) Section 805 requires that an officer, director, or peer
review administrator of a licensed health care center or clinic
must file a report with the applicable licensing agency when a
physician’s membership, staff privileges, or employment is
terminated or revoked for a “medical disciplinary cause or
reason.” (§ 805, subd. (b)(2).) “‘Medical disciplinary cause or
reason’ means that aspect of a [physician’s] competence or
professional conduct that is reasonably likely to be detrimental to
patient safety or to the delivery of patient care.” (§ 805, subd.
(a)(6).) Section 809.6, subdivision (c), provides that the
requirements of section 809.1 “may not be waived in [any
applicable agreement or contract between the licentiate and
health care entity] for a final proposed action for which a report is
required to be filed under Section 805.”
As stated, the medical executive committee terminated
Dr. Alaama’s privileges and staff membership for two reasons,
one of which was Dr. Alaama’s “fail[ure] to address the safety
concerns and patient care needs expressed by . . . the operating
room staff” in November 2015. The letter to Dr. Alaama from the
chief of staff explained that Dr. Alaama violated section 2.6 of the
Behavioral Agreement by, among other things, inhibiting the
hospital staff from providing a bed for a vomiting patient. Such
conduct falls squarely within the definition in section 805 of
“medical disciplinary cause or reason,” which includes a
physician’s “professional conduct that is reasonably likely to be
detrimental . . . to the delivery of patient care.” (§ 805, subd.
(a)(6).) By blocking hospital staff from moving a bed into position
for the patient, Dr. Alaama prevented the staff from delivering
patient care, which under the statute is a medical disciplinary
cause or reason. Thus, Dr. Alaama’s conduct triggered the
mandatory reporting requirement of section 805, which, in turn,
gave Dr. Alaama the right to a hearing under section 809.1. (See
§ 805, subd. (b)(2); § 809.1, subds. (a), (b)(3).)
The hospital argues it terminated Dr. Alaama “because of
his inappropriate, unprofessional, abusive and harassing
behavior toward physicians, nurses, and Hospital employees in
the workplace when he ‘failed to address patient care concerns
that were expressed to him by staff’ . . . .” Attempting to
distinguish Dr. Alaama’s conduct from conduct that amounts to a
“medical disciplinary cause or reason,” the hospital places great
significance (as did the trial court) on the fact Dr. Alaama failed
to respond to “expressed” concerns about patient care. The
hospital argues Dr. Alaama’s “disregard of multiple caregivers’
expressions of patient care concern did not rise to the level of
conduct that was detrimental to the patient’s safety or delivery of
patient care.” The hospital cites its investigator’s interview with
the anesthesiologist involved in the November 2015 incident, who
said Dr. Alaama’s conduct “was not detrimental to the patient’s
safety because the patient was oxygenating well despite the fact
that the patient was vomiting.” The hospital also cites Dr.
Alaama’s opening brief on appeal in which he states, “[t]he
anesthesiologist does not claim that patient care was an issue.”
But even if Dr. Alaama’s conduct in connection with the
November 2015 incident was not detrimental to patient safety, it
was detrimental “to the delivery of patient care.” (§ 805, subd.
(a)(6).) And that, under the statute, is enough.
The hospital also argues it satisfied Dr. Alaama’s due
process rights by providing a fair procedure conducted by the
medical executive committee. But section 809.1 establishes the
“minimum procedural standards” for terminating a physician’s
hospital privileges and membership. (Economy, supra, 31
Cal.App.5th at p. 1157.) A hospital cannot avoid the
requirements of sections 805 and 809.1 by substituting its
procedures for those established by the Legislature. (See
Economy, at p. 1158 [hospital cannot substitute its procedures for
section 809.1 because the “plaintiff’s right to practice medicine
would be substantially restricted without due process and,
despite the hospital’s concern that plaintiff was endangering
patient safety, the state licensing board would never be
Finally, the hospital cannot avoid its obligation to afford
Dr. Alaama a hearing by enforcing section 4.3 of the Behavioral
Agreement, which states that any termination as a result of
violating the terms of the agreement does not give rise to any
substantive or procedural rights under California law. The
hospital argues this provision is enforceable because the
circumstances under which the hospital terminated Dr. Alaama’s
membership did not implicate section 809.1. But because it did,
section 4.3 of the Behavioral Agreement is unenforceable. (See
§ 809.6, subd. (c).)4
4 Dr. Alaama does not argue any other provision of the
Behavioral Agreement is unenforceable. The hospital does not
argue we should affirm the trial court’s ruling on the basis of
paragraph 2.8 concerning retaliation.

Outcome: The order denying the petition for administrative mandate is reversed. The trial court is directed to enter a new order granting Dr. Alaama’s petition for mandate requesting a hearing. Dr. Alaama is to recover his costs on appeal.

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