Filed 7/16/21 Giacometti v. Puls Technologies CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SIMONE GIACOMETTI, D077232
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2017-
00041466-CU-BC-CTL)
PULS TECHNOLOGIES, INC. et al.,
Defendants and Respondents.
APPEAL from a judgment and order of the Superior Court of San Diego
County, Gregory W. Pollack, Judge. Affirmed.
Tauler Smith and Robert Tauler for Plaintiff and Appellant.
Buchalter, Tracy A. Warren, Kathryn B. Fox, and Robert M. Dato for
Defendants and Respondents.
Simone Giacometti appeals from the judgment entered against him
after a trial in which the jury rejected his claims for intentional
misrepresentation and false promise against Puls Technologies, Inc. and its
founder Itai Hirsch (collectively Puls). Giacometti also challenges the trial
court’s prior order granting Puls’s motion for summary adjudication of
Giacometti’s claim for breach of contract.
Giacometti contends there were triable issues of fact on his claim for
breach of contract that should have reached the jury. He also argues the
special verdict form submitted to the jury contained an erroneous statement
of the law with respect to his claim for intentional misrepresentation. As we
shall explain, we reject these arguments and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Puls, at the time of the relevant events called CellSavers, is a company
that sends technicians to its customers’ locations to repair or install various
types of equipment and devices. The company’s initial concept was to send a
technician to a customer’s home or office to repair broken cell phones. Puls
eventually expanded its business to include other types of equipment like
appliances and televisions. Hirsch founded the company in January 2015. In
April of that year, Puls hired Giacometti’s company, Vedilo, Inc. (Vedilo), to
provide marketing services at a rate of $349 per week.
Around the time Puls engaged Vedilo, Hirsch was seeking a Chief
Technology Officer (CTO) for Puls. Hirsch sent an email to several people,
including Giacometti, seeking leads on potential candidates to fill the role.
Giacometti responded immediately to the email, expressing interest in the
position.
Hirsch pursued hiring Giacometti on an interim basis and on May 20,
2015, after discussions over the phone and on Google chat, sent Giacometti
an email with the subject line “New Agreement LOI.”1 The email stated,
“Hey Simone, [¶] I wanted to quickly sum up our call from today in this
1 During his trial testimony, Hirsch explained LOI stood for letter of
intent.
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email. [¶] You will join CellSavers as a technical manager/temp CTO. [¶] For
your services the compensation will be as follow[s]: [¶] 1. $750 a week for a
period of 12 weeks. [¶] 2. $150,000 worth of stocks converted into equity once
the first seed round is completed. [¶] We will reevaluate the terms after the
12 weeks is over. The official starting day is 5.25.15[.] [¶] My attorney will
prepare the agreement within a week. [¶] Good luck to us!”
Minutes later, Giacometti responded by email “Thanks for
summarizing things. Don’t forget the Vedilo social media, it doesn’t have to
be in the agreement though as it is separate.” Hirsch wrote back, “I thought
we are doing the social media with the deal? since $2700+500 is $3250. Am I
wrong?” Hirsch testified at trial that after this exchange, Giacometti asked
for more money and that there were “constant negotiations for the next ten
weeks” over the terms of employment, with Giacometti seeking “more money,
faster vesting, more considerations.” Giacometti testified at trial that he
knew after receiving the LOI email that a written agreement would be
forthcoming.
In June, Hirsch forwarded Giacometti a document prepared by his
attorney, Jeff Pollak, titled “Independent Contractor and Nondisclosure
Agreement.” The document set forth detailed proposed terms for the equity
portion of the agreement. Hirsch sent the email in order to finalize their
agreement for Giacometti to join the company. Giacometti did not think that
the document accurately reflected the compensation that had been discussed
and responded with comments seeking changes and clarification on the
equity terms. Over the following weeks, Hirsch and Giacometti continued to
negotiate over the terms of Giacometti’s equity interest in the company.
Hirsch sent Giacometti two additional revised versions of the document, but
Giacometti did not agree to any version and never signed the agreement.
3
While the negotiations continued on the independent contractor
agreement, Giacometti began work for the company. He was paid $750 per
week as CellSavers’s interim CTO for 12 weeks. During that time,
Giacometti worked on various tasks, including working with a team to build a
store for technicians working with the company, improving the company’s
website conversion rate (i.e. converting visitors of the website to customers),
creating customer relationship management processes, and search engine
optimization. Giacometti also worked on preparing materials for
presentations to potential investors, including an organization chart showing
him as the company’s CTO.
On October 8, 2015, Giacometti and Hirsch met for lunch. At the
meeting, Hirsch told Giacometti that his services were not needed and that
the company was parting ways with him. At trial, Giacometti recalled Hirsch
telling him at the meeting that CellSavers was no longer financially viable.
Hirsch recalled telling Giacometti that his work was not up to par and his
services were no longer needed. According to Hirsch, the meeting was
amicable, and Hirsch encouraged Giacometti to keep him up to date on
another business idea the pair had discussed in the past.
After Giacometti and Hirsch parted ways, a venture capital company,
Sequoia Capital, committed a large investment to Puls. Hirsch testified that
the term sheet reflecting the investment was signed around November 11,
2015 and the financing was finalized the next month.
On November 29, 2015, Hirsch sent Giacometti an email asking him to
remove the position of CellSavers CTO from his LinkedIn profile, stating that
“someone asked about it and it created some confusion[.]” On December 6,
2015, Hirsch sent another email to Giacometti memorializing a telephone
conversation between them and stating that “[a]s we also discussed on the
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phone … we did not have any agreement at all regarding either a perpetual
role for you in the company or stock/stock options/equity in the company.”
The email set forth the history of the relationship between Giacometti and
CellSavers, and stated that while Hirsch had discussed an equity interest for
Giacometti, they had failed to come to a final agreement. Further, the email
noted that all versions of the draft agreement they had contemplated “were
clear that (1) [the equity] would have only been options [Giacometti] could
purchase at price determined by a formula, (2) they would vest over a long
period of time, and (3) in order to have the right to purchase such options
[Giacometti] would be required to continue to have a business relationship
with the company.” Hirsch’s email also said he would discuss with his co-
founder Giacometti’s request to keep using the CTO title in order to help his
future job prospects. Hirsch closed by wishing Giacometti future success.
Almost two years later, on October 31, 2017, Giacometti filed the
instant suit against Puls, CellSavers, and Hirsch. In his complaint,
Giacometti asserted claims for breach of contract and fraudulent inducement.
Giacometti alleged that the May 20, 2015 email constituted a contract for an
equity interest in Puls and that the company breached the contract by
denying him that interest after it obtained funding from Sequoia Capital.
Giacometti further alleged that Hirsch falsely represented he would provide
an equity interest in the company to induce Giacometti to provide services for
CellSavers, and that Hirsch terminated Giacometti knowing that equity
financing was imminent.
After discovery, the defendants moved for summary judgement or, in
the alternative, summary adjudication. The court granted summary
adjudication of the breach of contract claim, finding there was no evidence
that an agreement for an equity interest had been made because it was
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undisputed that the letter of intent email was not final and explicitly
contemplated a written agreement. The court denied summary adjudication
of Giacometti’s claim for fraudulent inducement, concluding that whether or
not Hirsch had fraudulently induced Giacometti to provide additional
services for the company was an issue for the trier of fact.
Thereafter, the parties engaged in additional discovery and related
litigation, including a motion to quash or for a protective order against
Giacometti’s subpoenas to third parties seeking information related to the
valuation of Puls. Before trial, the court rejected Giacometti’s attempts to
obtain this information on the grounds that the appropriate measure of
damages for his remaining fraud claims were out of pocket losses, not the lost
“benefit of the bargain” that would accompany his rejected breach of contract
claim.
The case proceeded to a jury trial on November 4, 2019. During the
jury instruction conference, Giacometti moved to amend his complaint to
conform to proof to add a claim for false promise. The court granted the
motion over Puls’s objection. At the close of trial, the jury returned a
unanimous special verdict in favor of the defense, thus rejecting Giacometti’s
claims for intentional misrepresentation (fraudulent inducement) and false
promise.
After trial, Giacometti moved for a new trial. One basis for the motion
was that the verdict form “did not comport with the CACI verdict forms for
intentional misrepresentation and false promise[.]” Giacometti argued that
because the form asked the jury if the company or Hirsch made a false
representation or false promise “during the hiring process of Simone
Giacometti to Simone Giacometti,” it improperly limited the jury to consider
if fraudulent intent existed only on or before Hirsch sent the May 20, 2015
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email. The trial court denied the motion, finding that “[t]he qualification in
the language of the verdict form that the intentional misrepresentation
and/or false promise must have been made ‘during the hiring process’ was
entirely consistent with Giacometti’s trial contention, the gravamen of his
tort claims being for fraudulent inducement ‘during the hiring process.’ ”
DISCUSSION
I
Summary Adjudication of Claim for Breach of Contract
Giacometti first challenges the trial court’s order granting summary
adjudication of his claim for breach of contract. He argues that a triable
issue of fact remained as to whether the May 20, 2015 email constituted an
agreement for Giacometti to receive a $150,000 equity interest in Puls.
Giacometti also argues the trial court erred by ruling the email could not
constitute an agreement as a matter of law because it explicitly contemplated
a further agreement. Puls responds that the court correctly determined there
was no triable issue of fact concerning the lack of an agreement, and that
even if there was error it was cured by the jury’s verdict rejecting
Giacometti’s false promise claim.
A
Our review following an order granting summary adjudication is
substantively identical to our review following an order granting summary
judgment. (See Orange County Water Dist. v. Sabic Innovative Plastics US,
LLC (2017) 14 Cal.App.5th 343, 367.) “The purpose of the law of summary
judgment is to provide courts with a mechanism to cut through the parties’
pleadings in order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 843 (Aguilar).) “A defendant’s motion for summary
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judgment should be granted if no triable issue exists as to any material fact
and the defendant is entitled to a judgment as a matter of law. [Citation.]
The burden of persuasion remains with the party moving for summary
judgment. [Citation.] When the defendant moves for summary judgment, in
those circumstances in which the plaintiff would have the burden of proof by
a preponderance of the evidence, the defendant must present evidence that
would preclude a reasonable trier of fact from finding that it was more likely
than not that the material fact was true [citation], or the defendant must
establish that an element of the claim cannot be established, by presenting
evidence that the plaintiff ‘does not possess and cannot reasonably obtain,
needed evidence.’ ” (Kahn v. East Side Union High School Dist. (2003) 31
Cal.4th 990, 1002–1003 (Kahn).)
If the defendant “carries his burden of production, he causes a shift,
and the opposing party is then subjected to a burden of production of his own
to make a prima facie showing of the existence of a triable issue of material
fact.” (Aguilar, supra, 25 Cal.4th at p. 850.) “The plaintiff … shall not rely
upon the allegations or denials of its pleadings to show that a triable issue of
material fact exists but, instead, shall set forth the specific facts showing that
a triable issue of material fact exists as to the cause of action or a defense
thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)
“We review the record and the determination of the trial court de novo.”
(Kahn, supra, 31 Cal.4th at p. 1003.) “In performing our de novo review, we
must view the evidence in a light favorable to plaintiff as the losing party
[citation], liberally construing [the plaintiff’s] evidentiary submission while
strictly scrutinizing defendants’ own showing, and resolving any evidentiary
doubts or ambiguities in plaintiff’s favor.” (Saelzler v. Advanced Group
(2001) 25 Cal.4th 763, 768.) “There is a triable issue of material fact if, and
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only if, the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with
the applicable standard of proof.” (Aguilar, supra, 25 Cal.4th at p. 850.)
To establish a claim for breach of contract for the equity interest
referenced in the May 20, 2015 email, Giacometti was required to establish
the existence of an enforceable agreement. “Under basic contract law ‘[a]n
offer must be sufficiently definite, or must call for such definite terms in the
acceptance that the performance promised is reasonably certain.’ [Citations.]
‘Where a contract is so uncertain and indefinite that the intention of the
parties in material particulars cannot be ascertained, the contract is void and
unenforceable. [Citation.]’ ” (Ladas v. California State Auto. Assn. (1993) 19
Cal.App.4th 761, 770 (Ladas).)
Put another way “[t]o be enforceable, a promise must be definite
enough that a court can determine the scope of the duty and the limits of
performance must be sufficiently defined to provide a rational basis for the
assessment of damages.” (Ladas, supra, 19 Cal.App.4th at p. 770.) “Whether
a contract term is sufficiently definite to be enforceable is a question of law
for the court.” (Id. at p. 770, fn. 2.) Further, “where the parties intend to
reduce their agreement to writing there is no binding agreement between the
parties until a written contract is signed.” (C. L. Smith Co. v. Roger
Ducharme, Inc. (1977) 65 Cal.App.3d 735, 742.)
B
Contrary to Giacometti’s assertions on appeal, the record shows he
provided no evidence at the summary adjudication stage establishing a
triable issue of material fact with respect to the existence of a contract for an
equity interest in Puls. Further, as Puls asserts, Giacometti’s trial testimony
confirmed that he understood a written agreement would be prepared to
9
finalize the terms of the proposed equity interest, precluding a finding that
the email was an enforceable contract.
In his opening brief, Giacometti cites only to one statement in his
declaration—that he “ ‘worked full time for Puls’ for the 12 weeks
contemplated and was listed as CTO on company documents prepared for
investors” —as evidence the email was an enforceable contract giving him an
equity interest valued at $150,000. This statement, however, does not show a
triable issue of material fact concerning the existence of the contract. (See
Founding Members of the Newport Beach Country Club v. Newport Beach
Country Club, Inc. (2003) 109 Cal.App.4th 944, 956 [“The parties’ undisclosed
intent or understanding is irrelevant to contract interpretation.”].) Rather, it
is evidence that Giacometti went to work for Puls. It does not contradict the
evidence submitted by Puls showing the parties never came to an agreement
with respect to the proposed equity interest. That evidence included the May
20, 2015 email itself, which stated Giacometti could expect an agreement
from Puls’s attorney; Giacometti’s response asking if the agreement should
include Vedilo; and Giacometti’s rejection of three drafts of the agreement
and engagement in negotiation of its final terms. This evidence showed, as a
matter of law, that there was no meeting of the minds with respect to the
equity interest.
In addition, Giacometti’s testimony at trial confirmed his
understanding that the equity interest would be set forth in a written
agreement following the May 20, 2015 email. Giacometti stated he
understood a written agreement was forthcoming and that he engaged in
continued negotiations with Hirsch, primarily over the vesting period for the
equity, in the weeks following the email. Further, there is no dispute that
the agreement concerning the proposed equity interest was never finalized.
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On this record, Giacometti cannot show the court’s summary adjudication of
his breach of contract claim was error.
Giacometti relies on J.B.B. Investment Partners Ltd. v. Fair (2019) 37
Cal.App.5th 1 (J.B.B.) to support his assertion that the court erred by
concluding as a matter of law there was no agreement because the May 20,
2015 email contemplated a further agreement. He also cites Blix St. Records,
Inc. v. Cassidy (2010) 191 Cal.App.4th 39 (Blix) for the same proposition.
Neither case supports reversal here.
In J.B.B., the plaintiffs, investors in an alleged Ponzi scheme,
threatened litigation if the defendant companies did not accept a proposed
settlement contained in an email. (J.B.B., supra, 37 Cal.App.5th at pp. 9‒11.)
The email set forth ten detailed terms of the settlement and stated only a yes
or no answer, and no counteroffer, would be accepted. (Id. at p. 9.) The
following day, hours after the plaintiffs filed their complaint, the defendants’
counsel responded unequivocally that defendants agreed to the offer. (Id. at
p. 10.) The trial court rejected defendants’ argument that no contract was
formed and granted the plaintiffs’ motion for summary adjudication of their
claim the defendants had breached the settlement agreement. (Id. at p. 7.)
The defendants appealed, arguing a triable issue of material fact remained as
to whether the parties entered a binding settlement agreement. (Ibid.)
The Court of Appeal rejected the challenge, holding the trial court’s
ruling was correct because the parties’ communications “ ‘permit only one
reasonable conclusion—the parties agreed to a binding settlement[.]’ ”
(J.B.B., supra, 37 Cal.App.5th at p. 11.) The court rejected the defendants’
argument that because plaintiffs followed the email exchange with a more
formal agreement that included additional standard contractual language,
the earlier agreement was rendered invalid. (Id. at p. 12.) The offer,
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described in the email as plaintiffs’ “ ‘FINAL OFFER[,]’ … ‘included specific
terms (settlement amount, payment deadline, release of claims, etc.)
delineated in 10 separately numbered paragraphs, which expressly invited
defendants’ acceptance.’ ” (Id. at p. 13.) Unlike the May 20, 2015 email, the
J.B.B. settlement offer email contained the agreement’s material terms,
which “were unambiguous and clear, and therefore enforceable.” (Ibid.) The
J.B.B. email also expressed clearly it was intended to settle the claims at
issue and that its acceptance constituted an agreement to settle. (Id. at
p. 13.) In contrast here, the May 20, 2015 email and the communications
between Hirsch and Giacometti that followed, showed unequivocally the
parties’ intent to finalize the proposed equity interest by way of a formal
agreement prepared by Puls’s lawyer. If anything, J.B.B. supports the trial
court’s conclusion that no final agreement with respect to the proposed equity
agreement was reached on May 20, 2015.
Blix involved the enforcement of a settlement agreement by way of
judicial estoppel. (Blix, supra, 191 Cal.App.4th at p. 41.) The settlement
agreement was reached on the eve of trial, and at the readiness conference
the parties represented to the court that the lawsuit was settled. Shortly
after, one party changed course and rejected the agreement. (Id. at pp. 42–
45.) At the time counsel told the court a settlement had been reached,
however, the party did not object or raise any concern. (Id. at p. 49.) The
“settlement agreement itself recited that it was enforceable[.]” (Ibid.)
An argument advanced by the party challenging the settlement was
that there was no expectation reliance by the trial court because the parties
contemplated a future “long-form agreement.” (Blix, supra, 191 Cal.App.4th
at p. 43.) In upholding the trial court’s determination that the settlement
agreement was enforceable through principles of judicial estoppel, the Court
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of Appeal noted that “[w]hen parties intend that an agreement be binding,
the fact that a more formal agreement must be prepared and executed does
not alter the validity of the agreement.” (Id. at p. 48.) Giacometti relies on
this language to support his position. Blix, however, is inapposite. In
addition to the important distinction that enforcement of the agreement there
was based on judicial estoppel, not mutual assent, the case involved an
agreement the parties intended to be binding. No evidence in this case
showed such an intent with respect to the May 20, 2015 email.
In sum, the trial court’s determination that there was no triable issue
of material fact as to whether the May 20, 2015 constituted an enforceable
contract was not error.
II
Alleged Instructional Error
Giacometti next asserts reversal of the judgment is required because
the special verdict form contained an erroneous statement of the law and “did
not comport with the CACI verdict forms for intentional misrepresentation.”
Puls responds that Giacometti forfeited this issue because he did not object to
the form before the jury rendered its verdict. Puls also asserts that even if
the argument was not forfeited, there was no error because the form did not
restrict the jury in the manner Giacometti contends.
A
“ ‘Failure to object to a verdict before the discharge of a jury and to
request clarification or further deliberation precludes a party from later
questioning the validity of that verdict if the alleged defect was apparent at
the time the verdict was rendered and could have been corrected.’ ” (Keener
v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 263–264, italics omitted.) “ ‘The
obvious purpose for requiring an objection to a defective verdict before a jury
13
is discharged is to provide it an opportunity to cure the defect by further
deliberation. [Citation.]’ ” (Taylor v. Nabors Drilling USA, LP (2014) 222
Cal.App.4th 1228, 1242.) “The rule is designed to advance efficiency and
deter gamesmanship.” (Keener v. Jeld-Wen, Inc., at p. 264.)
“ ‘ “ ‘ “In the hurry of the trial many things may be, and are, overlooked
which would readily have been rectified had attention been called to them.
The law casts upon the party the duty of looking after his legal rights and of
calling the judge’s attention to any infringement of them. If any other rule
were to obtain, the party would in most cases be careful to be silent as to his
objections until it would be too late to obviate them, and the result would be
that few judgments would stand the test of an appeal.” ’ ” ’ ” (Keener v. Jeld-
Wen, Inc., supra, 46 Cal.4th at pp. 264–265.)
B
The special verdict form for Giacometti’s claim of intentional
misrepresentation, which covered the fraudulent inducement cause of action
pled in the complaint, contained six questions. The first question asked the
jury, “Did Puls Technologies, Inc. and/or Itai Hirsch intentionally make a
false representation during the hiring process of Simone Giacometti to
Simone Giacometti. [ ] ____ Yes ____ No.” The jury answered the question
“No,” rendering a defense verdict and eliminating the need to answer the
remaining questions for that claim.
The verdict forms were discussed at a conference the afternoon before
the close of evidence.2 When the discussion of jury instructions was
completed, the discussion turned to the verdict forms. Both parties
submitted versions of the verdict forms to the court. Giacometti’s counsel
2 The court noted at the outset of the reported portion of the conference
that there had been “a lot of discussions about jury instructions off the
record” and that it had “made rulings off the record[.]”
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advocated for using the standard CACI forms for each claim, while Puls’s
counsel proposed the special verdict forms that became the basis for the
forms ultimately used.3
The discussion of which forms to use centered on whether to merge the
two claims into one special verdict form and what measure of damages
applied to each claim. The defense argued there was no difference between
the fraudulent misrepresentation claim and the false promise claim, thus one
form was sufficient. Giacometti’s counsel disagreed and asserted that the
claims should be separately evaluated by the jury. During the conference,
Giacometti’s counsel did not raise any objection to the first question on the
form for intentional misrepresentation that he now challenges on appeal.
After the verdict, in his motion for a new trial, Giacometti asserted for
the first time that the verdict form for intentional misrepresentation was
contrary to the law because it suggested fraudulent intent could only be
measured as of May 20, 2015. In support of his assertion that the issue had
been raised during the jury instruction conference, Giacometti’s motion
quoted his counsel’s statements during the discussion of the defense’s motion
in limine to limit the testimony of Giacometti’s damages expert who was
testifying the following day. During the colloquy, Giacometti’s counsel
explained that the fraud based on false promise was completed, and damages
were thus incurred, only once Sequoia Capital funded Puls. The quoted
discussion contained no mention of whether the form improperly limited the
jury’s evaluation of when the alleged intentional misrepresentation was
made, the issue Giacometti raises here. Indeed, Giacometti’s appellate briefs
3 The record contains proposed verdict forms submitted in the joint trial
conference report, but does not appear to include the versions of the verdict
forms discussed at the conference.
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do not specifically identify any objection to the verdict form on this basis
before the jury rendered its verdicts.
On this record, we agree with Puls that Giacometti forfeited the issue
he asserts on appeal by failing to raise it in a timely manner in the trial
court. Accordingly, we reject this challenge to the jury’s verdict.
DISPOSITION
The summary adjudication order and judgment are affirmed.
Appellant to bear the costs of appeal.
McCONNELL, P. J.
WE CONCUR:
BENKE, J.
IRION, J.
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