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Zittrain Torts Playlist Spring 2013

Kendra Knight, Plaintiff and Appellant, v. Michael Jewett, Defendant and Respondent.

Headnote

Should courts recognize an implied "assumption of risk" when individuals participate in activities where physical contact is routine? Plaintiff and defendant were on opposing sides in a game of touch football. No explicit rules were written down or discussed prior to the game, except that a two-handed touch above the waist would stop the advancement of another player. During the game, defendant played roughly, prompting the plaintiff to warn the defendant not to play so rough or she would quit the game. Later in the game, the defendant knocked the plaintiff over while intercepting a pass. When the defendant landed, he stepped on and injured the plaintiff's little finger. After three unsuccessful surgeries, the plaintiff had her finger amputated during a fourth surgery.

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275 Cal.Rptr. 292
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Previously published at 232 Cal.App.3d 1142, 3 Cal.App.4th 1022
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232 Cal.App.3d 1142, 3 Cal.App.4th 1022
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Kendra KNIGHT, Plaintiff and Appellant,

v.

Michael JEWETT, Defendant and Respondent.

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No. D010463.
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Court of Appeal, Fourth District, Division 1, California.
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Nov. 27, 1990.
Review Granted Feb. 14, 1991.
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[275 Cal.Rptr. 293] [232 Cal.App.3d 1146] [3 Cal.App.4th 1026] Steven H. Wilhelm, San Diego, for plaintiff and appellant.

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Daley & Heft, Sarah H. Mason and Dennis W. Daley, Solana Beach, for defendant and respondent.

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TODD, Acting Presiding Justice.

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Kendra Knight appeals a summary judgment granted in favor of Michael Jewett in her lawsuit against Jewett for negligence and assault and battery stemming from a touch football game in which she was injured. Knight contends (1) it was error to apply the doctrine of assumption of risk to defeat the negligence cause of action, (2) it was error to apply the doctrine of assumption of risk to defeat the assault and battery cause of action and (3) there were triable issues of fact that should have precluded the granting of summary judgment.

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FACTS

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On January 25, 1987, Knight and several other individuals, including Jewett, gathered at the Vista home of Ed McDaniels to observe the Super Bowl football game. Knight and Jewett were among those who decided to play a game of co-ed touch football during half-time using a "peewee" football often used by children. Apparently, no explicit rules were written down or discussed before the game, other than the requirement that to stop advancement of the player with the ball it was necessary to touch that player above the waist with two hands. Knight and Jewett were on different teams.

14

Previously, Knight had played touch football and frequently watched football on television. Knight voluntarily participated in the Super Bowl half-time game. It was her understanding that this game would not involve forceful pushing, hard hitting or hard shoving during the game. She had never observed anyone being injured in a touch football game before this incident.

15

About five to ten minutes after the game started, Jewett ran into Knight during a play and afterward Knight asked Jewett not to play so rough. Otherwise, she told him, she would stop playing.

16

[232 Cal.App.3d 1147] [3 Cal.App.4th 1027] On the next play, Knight suffered her injuries, when she was knocked down by Jewett and he stepped on the little finger of her right hand. Kendra had three surgeries on the finger, but they proved unsuccessful. The finger was amputated during a fourth surgery.

17

According to Jewett, he had jumped up to intercept a pass and as he came down he knocked Knight over. When he landed, he stepped back and onto Knight's hand.

18

According to Knight's version, her teammate, Andrea Starr had caught the ball and was proceeding up the field. Knight was headed in the same direction, when Jewett, [275 Cal.Rptr. 294] in pursuit of Starr, came from behind Knight and knocked her down. Knight put her arms out to break the fall and Jewett ran over her, stepping on her hand. Jewett continued to pursue Starr for another 10 to 15 feet before catching up with her and tagging her. Starr said the tag was rough enough to cause her to lose her balance and fall and twist her ankle.

19

Jewett did not intend to step on Knight's hand and did not intend to hurt her.

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DISCUSSION

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I

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Knight contends it was error to apply the doctrine of assumption of risk to the facts of this case and negate her cause of action for negligence. We disagree.

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It is fundamental that a plaintiff in a negligence action can prevail only if he or she establishes the defendant owed the plaintiff a duty to use reasonable care and breached that duty. (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 732, p. 60.) The doctrine of assumption of the risk is "another way of stating that the defendant's duty of care has been reduced in proportion to the hazards attendant to the event. Where no duty of care is owed with respect to a particular mishap, there can be no breach; consequently, as a matter of law, a personal injury plaintiff who has voluntarily--and reasonably--assumed the risk cannot prevail." (Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 104, 243 Cal.Rptr. 536.)

24

We begin with a short history of California cases which have explored the defense of assumption of the risk after our Supreme Court handed down its decision in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 808, 119 Cal.Rptr. [232 Cal.App.3d 1148] [3 Cal.App.4th 1028] 858, 532 P.2d 1226, abolishing the defense of contributory negligence and replacing it with a system of comparative negligence. Li raised considerable doubt as to the survival of assumption of the risk as a tort defense, except for express contractual assumption. (See, e.g., Schwartz, Comparative Negligence (2d ed. 1986) § 9.1, p. 156.)

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The first reported post-Li case in this area was Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578, in which the plaintiff was injured during a flag football game. In Segoviano, the Fifth Appellate District concluded that reasonable implied assumption of the risk had been abolished by Li:

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"We interpret Li to mean that the separate defense of implied assumption of the risk is abolished under the comparative negligence law. It is only when the plaintiff expressly agrees to assume the risk that the defendant is relieved of a duty of care toward the plaintiff, thus barring any recovery. In our view, this is the only rational meaning to be given to the principles articulated in Li. The Supreme Court recognized that implied assumption of risk if unreasonable could be fairly handled under the comparative negligence concept, i.e., the plaintiff's recovery would be reduced to the extent his own lack of reasonable care contributed to his injury. If the plaintiff's conduct was entirely reasonable under all of the circumstances, we find no basis in reason or equity for barring his recovery." (Id. at pp. 169-170, 191 Cal.Rptr. 578.)

27

The position of the court in Segoviano, supra, 143 Cal.App.3d 162, 191 Cal.Rptr. 578, has found little support in subsequent cases.[1] The Third Division of our appellate district issued the first of these cases, Rudnick v. Golden West Broadcasters (1984) 156 Cal.App.3d 793, 800, footnote 4, 202 Cal.Rptr. 900, in which the lead opinion, in dictum, affirmed the continued viability of an assumption of the risk defense and questioned the reasoning of Segoviano. Rudnick involved injury to a spectator at a baseball game at Anaheim Stadium, and one of the interposed defenses was assumption of risk. The appellate court did not reach this issue because it concluded summary judgment had been improvidently [275 Cal.Rptr. 295] granted on the basis of an insufficient declaration.

28

In Nelson v. Hall (1985) 165 Cal.App.3d 709, 211 Cal.Rptr. 668, a case involving injuries to a veterinary assistant, the Third Appellate District held the defense of assumption of the risk was applicable even though the claim was based upon strict liability under the dog-bite statute. The Nelson court said a veterinarian or his assistant is aware dogs may bite during treatment and "has assumed this risk as part of his or her occupation." (Id. at p. 715, 211 Cal.Rptr. 668.)

29

[232 Cal.App.3d 1149] [3 Cal.App.4th 1029] In Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, 183, 229 Cal.Rptr. 612, a Second Appellate District case, the court said Li, supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, did not abrogate the doctrine of implied reasonable assumption of the risk. In Neinstein, the plaintiff had occupied a seat in an unscreened area of Dodger Stadium and was struck by a batted ball. The appellate court upheld the granting of summary judgment in favor of the Dodgers, noting the plaintiff consented to take her own chances that she would not be injured when she voluntarily elected to sit in the unscreened area and "was sufficiently warned of the risk by common knowledge of the nature of the sport...." (Neinstein, supra, 185 Cal.App.3d at p. 184, 229 Cal.Rptr. 612.)

30

The definitive statement of the law of "reasonable implied assumption of the risk" is contained in Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536, another decision by the Third Division of this appellate district. Ordway involved injuries suffered by a professional jockey during a race when other jockeys "crossed over" without sufficient clearance. The Ordway court, in a comprehensive review of the subject, compared (a) express assumption of the risk, (b) unreasonable implied assumption of the risk, and (c) reasonable assumption of the risk, and concluded Li, supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, had merged only unreasonable implied assumption of the risk into the comparative negligence doctrine. Rejecting Segoviano, supra, 143 Cal.App.3d 162, 191 Cal.Rptr. 578, the Ordway court held that reasonable implied assumption of risk remained, after Li, a complete defense. (Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 102-105, 243 Cal.Rptr. 536.)[2]

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We join the clear California trend in adopting the Ordway analysis and conclusion that--notwithstanding the adoption of comparative negligence--reasonable implied assumption of risk remains a viable defense. We conclude the doctrine of reasonable implied assumption of risk is a logical allocation of risk among those who have impliedly agreed in advance. "Reasonable implied assumption of risk is the inferred agreement to relieve a potential defendant of a duty of care based on the potential plaintiff's reasonable conduct in encountering a known danger." (Ordway, supra, 198 Cal.App.3d at p. 102, 243 Cal.Rptr. 536, original italics.) In other words, it is the undertaking of a risk which a reasonable person would assume, with knowledge of all the circumstances. As Dean Prosser explained:

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"[W]here the plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation ... [h]e may then be regarded as tacitly or impliedly consenting to the negligence, and agreeing to take his own chances." (Prosser & Keeton, op. cit. supra, § 68, p. 481, emphasis in original.)

33

[232 Cal.App.3d 1150] [3 Cal.App.4th 1030] The question remains whether application of the defense was proper here. Here, Knight was familiar with football and voluntarily joined a group of men and women to play a game of touch football. It is axiomatic that those who engage in or follow competitive sports know physical contact causing injuries is routinely caused by both the acts of adversaries and of [275 Cal.Rptr. 296] collaborators by reason of the very nature of the activity in which all participate. As an avid television watcher of Monday night professional football and sometime touch football player, Knight had to have been aware of the fact that contact is an inherent part of the game of football--even a social game of touch football. Though in her experience of playing touch football no one had previously been injured, Knight said in her deposition she was aware of the fact that in touch football people generally try to block the ball from the receiving player.

34

"If the defendant's actions, even those which might cause incidental physical damage in some sports, are within the ordinary expectations of the participants--such as blocking in football, checking in hockey, knock-out punches in boxing, and aggressive riding in horse racing--no cause of action can succeed based on a resulting injury." (Ordway, supra, 198 Cal.App.3d at pp. 111-112, 243 Cal.Rptr. 536, fn. omitted.)

35

When she voluntarily played in the game, Knight assumed a risk of physical contacts within the ordinary parameters of a game of touch football--and the dangers inherent in such contacts. Thus, her assumption of the risk of contact injury bars her negligence cause of action.

36

Knight's argument that implied reasonable assumption of risk was inapplicable because Jewett's conduct was outside the reasonable expectations of the participants is not persuasive. For one thing, the failure to set down explicit rules before the game started indicates the participants did not attempt to delineate the level of permissible force or aggressiveness or roughness for the game. Moreover, in the context of sports, it is always unrealistic to expect a narrow range of conduct among the participants. Knight makes much of the fact that on a previous play, she asked Jewett to play less roughly. However, we find the fact that Knight continued to play after she learned that Jewett was playing at a level of aggressiveness and roughness that was not to her liking tends to show that she indeed had voluntarily and knowingly assumed the risks of this particular touch football game when she was injured.[3]

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[232 Cal.App.3d 1151] [3 Cal.App.4th 1031] II

38

Knight contends that even if we find the doctrine of implied reasonable assumption of the risk to be applicable here, summary judgment was inappropriate because there were questions of fact to be determined. The contention is without merit.

39

Code of Civil Procedure section 437c, subdivision (c), provides, in part, that "the motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Italics added.) The California Supreme Court has stated that:

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"The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue.... Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the trial judge hearing the motion sufficient to present a triable issue." (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

41

In reviewing an order granting summary judgment, "the appellate court has the duty to determine whether a triable issue of material fact exists." (Estate of Pitzer (1984) 155 Cal.App.3d 979, 986, 202 Cal.Rptr. 855.)

42

[275 Cal.Rptr. 297] Here, the parties dispute how the injury occurred: Jewett claims he collided with Knight as he was trying to intercept a pass, while Knight claims Jewett ran into her from behind as he was pursuing the ball carrier. While this is a factual dispute, it is immaterial to the issue of assumption of risk. Knight also posits there is a factual dispute about whether she had knowledge of the risk involved in this game because she did not appreciate the magnitude of the danger presented by Jewett's over-exuberant or aggressive level of play. This argument begs the question. The issue is whether the defendant's conduct is within the ordinary expectations of the participants in the particular sport. (Ordway, supra, 198 Cal.App.3d at p. 111, 243 Cal.Rptr. 536.) It cannot be disputed that Knight knew a touch football game entails physical contact. As discussed in part I of this opinion, Knight cannot claim Jewett's aggressive play transformed this game into something more than it was, namely a game of touch football, and negated her assumption of the risk that she might incur incidental physical injury when she voluntarily agreed to participate.

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"[T]he purpose of a summary judgment 'is to expedite litigation by avoiding needless trials'...." (Burton v. Security Pacific Nat. Bank [232 Cal.App.3d 1152] (1988) 197 Cal.App.3d 972, 977, 243 Cal.Rptr. 277.) Therefore, "[i]f there are no triable issues, summary judgment is appropriate." (Ibid.) Here, we conclude [3 Cal.App.4th 1032] there are no material issues of fact on the negligence cause of action. The defense of implied reasonable assumption of the risk acts as a legal bar to this cause of action. A summary judgment motion should be granted if the moving party is entitled to judgment as a matter of law. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.)[4]

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III

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Knight contends her cause of action for assault and battery is viable and she should be allowed to proceed to trial on it.

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Somehow Knight infers from the trial court's summary judgment order that it applied the assumption of the risk doctrine to bar the assault and battery doctrine as well. We agree it would be error to apply assumption of the risk, a negligence doctrine, to assault and battery, which is an intentional tort. (Ordway, supra, 198 Cal.App.3d at p. 108, 243 Cal.Rptr. 536.) However, we find no evidence the trial court applied assumption of the risk to the assault and battery cause of action. Jewett's moving papers[5] below did not argue assumption of the risk as a defense to the assault and battery cause of action. Rather, with respect to this cause of action, Jewett argued it must fail because Knight consented to the physical contact.[6]

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[232 Cal.App.3d 1153] [275 Cal.Rptr. 298] [3 Cal.App.4th 1033] Consent is a viable defense to the tort of assault and battery. "A person may, by participating in a game, or by other conduct, consent to an act which might otherwise constitute a battery." (5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 350, p. 438; see also BAJI No. 7.51.) Here, however, we need not dwell on whether Jewett can successfully interpose a defense of consent to Knight's assault and battery cause of action.

48

Inasmuch as this case reaches us on appeal from a summary judgment in favor of Jewett, it is only necessary for us to determine whether there is any possibility Knight may be able to establish her case. (Neinstein, supra, 185 Cal.App.3d at p. 179, 229 Cal.Rptr. 612.)

49

A requisite element of assault and battery is intent. (Prosser, supra, § 9, p. 41; see also BAJI No. 7.51.) Here, however, there is no evidence that Jewett intended to injure Knight or commit a battery on her. Moreover, the record affirmatively shows Knight does not believe Jewett had the intent to step on her hand or injure her.[7] Without the requisite intent, Knight cannot state a cause of action for assault and battery.

50

A motion for summary judgment is addressed to the sound discretion of the trial court and, absent a clear showing of abuse, the judgment will not be disturbed on appeal. (Hoffman v. Citadel General Assurance, Ltd. (1987) 194 Cal.App.3d 1356, 1362, 240 Cal.Rptr. 253.) On this record, we discern no abuse of discretion; the granting of summary judgment was proper.

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DISPOSITION

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Affirmed.

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BENKE and LIM,[*] JJ., concur.

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[1] The position of the Segoviano court is also contrary to that of Restatement of the Law, Torts 2d (1965) section 496 C, at pages 432-436, and a number of non-California authorities (see Prosser & Keaton, Torts (5th ed. 1984) § 68, pp. 497-498).

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[2] Subsequent published cases have adopted this position. See e.g., Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 255 Cal.Rptr. 755 (Second Appellate District); Nunez v. R'Bibo (1989) 211 Cal.App.3d 559, 260 Cal.Rptr. 1 (Second Appellate District).

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[3] We also find unpersuasive Knight's arguments that cases such as Ordway, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536, involving professional sports should not apply here. Ordway makes it clear the assumption of risk doctrine applies to amateur athletics as well: "[T]he individual who knowingly and voluntarily assumes a risk, whether for recreational enjoyment, economic reward, or some similar purpose, is deemed to have agreed to reduce the defendant's duty of care." (Id. at p. 104, 243 Cal.Rptr. 536.)

57

[4] The question of duty is decided by the court, not the jury. (6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 748, p. 83.) In Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, footnote 6, 224 Cal.Rptr. 664, 715 P.2d 624, our Supreme Court observed: " '[D]uty' is not an immutable fact of nature ' "but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." ' [Citations.] ... [A] court's task--in determining 'duty'--is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party." (Emphasis in original.)

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[5] We also note that in his answer to the complaint, Jewett pled consent as an affirmative defense to the assault and battery cause of action.

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[6] Assuming arguendo that the trial court did erroneously apply assumption of the risk to the assault and battery cause of action, it would not necessarily be reversible error. "Where a motion for summary judgment has been granted and there is a sufficient ground to support the judgment entered thereon, it will be upheld regardless of the grounds on which the trial court based its decision." (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 261(d), p. 268; Snider v. Snider (1962) 200 Cal.App.2d 741, 746, 19 Cal.Rptr. 709; Constance B. v. State of California (1986) 178 Cal.App.3d 200, 211, 223 Cal.Rptr. 645.) " 'The fact that the action of the [trial] court may have been based upon an erroneous theory of the case, or upon an improper or unsound course of reasoning, cannot determine the question of its propriety.... [A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.' " (Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 267, 147 Cal.Rptr. 1.) Thus, "[i]f the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion." (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 259, p. 266).

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[7] The deposition of Kendra Knight was taken on October 19, 1988, and offered in support of the motion for summary judgment. Ms. Knight testified as follows:

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"Q. Do you believe that Mr. Jewett was trying to step on your hand? Do you have any reason to believe he had any intention to hurt you?

"A. No."

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[*] Assigned by the Chairperson of the Judicial Council.