Filed 4/22/13
Richart v. Miracosta Community College Dist. CA4/1


     Plaintiff and Respondent,


     Defendant and Appellant.

(Super. Ct. No. 37-2011-00083862-CU-OE-CTL)

     APPEAL from a judgment of the Superior Court of San Diego County, Jacqueline M. Stern,
Judge.  Affirmed.
     In this anti-SLAPP case, we largely agree with the trial court that plaintiff and respondent
Victoria Munoz Richart's complaint against defendant and appellant MiraCosta Community
College District (District) is not subject to a motion to strike under the anti-SLAPP statute, Code
of Civil Procedure  section 425.16.  The fact Richart's employment as a District administrator
ended in 2010 following public controversy in 2006 and 2007 about her leadership does not
bring the wrongful termination causes of action she is now asserting within the scope of the
anti-SLAPP statute.  The record shows Richart's wrongful termination causes of action against
District are based on District's failure in 2009 and 2010 to perform duties imposed on it by the
state and federal Constitutions, her contract with District or statute, and not on any exercise by
District of any right protected under the petition and free speech provisions of the state and
federal Constitutions.  Thus, at this point in the proceedings, Richart's wrongful termination
claims do not allege causes of action which arise "from any act in furtherance" of "right of
petition or free speech" within the meaning of the anti-SLAPP statute.
     As we also explain, with respect to Richart's claims she has been stigmatized by District's
conduct in terminating her employment, the record is clear that her claims are based in
substantial part on public statements individual members of District's board of trustee's (Board)
made beginning in 2006.  Thus, we conclude Richart's stigmatization claims are within the
scope of the anti-SLAPP statute.  However, we conclude that, with respect to those claims,
Richart has provided sufficient evidence of likely success on the merits.
     Finally, we conclude that Richart's retaliation claims, her claim she was subjected to a
violent threat, and her declaratory relief cause of action are not within the scope of section
In sum, because the claims Richart asserts are either outside the scope of the anti-SLAPP
statute or Richart has shown a likelihood of success with respect to covered claims, we affirm
the trial court's order denying District's motion to strike.
     A.  Tenure as College President and Settlement
The circumstances giving rise to Richart's complaint were, in many material respects,
summarized in our opinion in Page v. MiraCosta Community College Dist. (2009) 180 Cal.App.
4th 471 (Page).  In Page, we held that a settlement agreement Richart and District entered into
during the controversy, which arose when she reported wrongdoing by other District
employees and administrators, was invalid because it provided Richart with compensation
which exceeded the limits set forth in Government Code sections 53260 and 53261.   These
provisions limit what District may provide by way of a compromise of an employee's claims.
As summarized in Page, the circumstances which led to the settlement were as follows:  
"In 2004, District hired Richart as the superintendent and president of [MiraCosta College].  
She received high ratings in 2005 and 2006 performance evaluations.  In July 2006, District
renewed Richart's employment for an additional four-year term, from July 1, 2006, to June 20,
2010.  Her employment agreement provided for an annual salary of approximately $227,200
with specified increases, health insurance, and other benefits.  Her employment agreement
also contained a provision mandated under section 53260 detailing the maximum cash
settlement she 'may' receive 'if this Employment Agreement is terminated . . . .'  [Fn. omitted.]
"In the summer of 2006, in response to a whistleblower's report, Richart initiated an
investigation of alleged financial mismanagement within the college's horticulture department.  
She reported the matter to the district attorney, and the employee responsible for the day-to-
day operations of that department was eventually charged with and pleaded guilty to fraud.  At
the end of November 2006, a secret vote by some college faculty members unhappy with
Richart's actions resulted in a resolution of no confidence against her.
"By early 2007, the investigation and Richart's role in it had become increasingly controversial,
resulting in complaints by the academic senate's president and council about Richart's general
leadership.  The Board's president, however, issued a letter indicating the Board's support for
Richart.  Large numbers of college employees began attending Board meetings to complain
about the report and Richart's investigation.  On February 1, 2007, three trustees, Gloria
Carranza, Jackie Simon and Judy Stratton, issued a 'minority response' that addressed and
criticized the Board's responses to various concerns raised by the academic senate, in part
accusing the Board majority of ignoring those and other faculty member concerns.
"Richart met the next day with Board president Charles Adams, former Board president Rudy
Fernandez and District's general counsel to discuss the minority report and prepare a letter
regarding the minority trustees' comments.  In her February 2, 2007 letter, Richart expressed
her belief that the minority response was a public negative evaluation that undermined her
office and the Board's ability to work together for the good of the college, and constituted a
violation of her due process rights.  She expressed her belief that it might be in her best
interest to publicly reveal past misconduct at the college that had occurred before her arrival.  
At the same time, Board president Adams wrote to the trustees stating that the minority
trustees had violated Richart's due process and privacy rights, and informing them that
opinions about Richart's performance had to be disclosed in closed session where it was on
the agenda for evaluations.  He instructed the trustees not to make any public evaluation
statements about Richart.
"Later that month, during a public hearing, trustee Stratton read out loud portions of Richart's
February 2, 2007 letter.  She spoke negatively about Richart's letter and its content, and
berated her in public.  Trustee Carranza also spoke about Richart, reporting information from
another letter Richart wrote to the Board in October 2006 and expressing 'fear and
intimidation' as a result of Richart's February 2007 letter.  Carranza stated she felt Richart's
letter 'was threatening a public official . . . .'  Another Board member responded that the
minority trustees' actions in evaluating Richart in public and sending their response to the
college's academic senate were legally improper and put the District at grave litigation risk.  
Following the hearing, trustee Stratton provided Richart's October 2006 and February 2007
letters to the attorney for the academic senate president.
"Eventually, Richart retained attorney Robert Ottilie to evaluate her claims against the
individual trustees.  District's vice-president of business and administrative services, Jim
Austin, met on at least two occasions with District's claims adjuster, who indicated she believed
Richart's claims presented a significant threat of litigation to District.  The adjuster appointed
legal counsel and agreed to mediate the dispute in front of retired Superior Court Judge David
Moon.  On June 8, 2007, Richart and Ottilie met with Austin, District's general counsel, and
retired Judge Moon to present the facts of her claims.  Based on his meetings, the discussions
with Judge Moon and the claims adjuster's analysis, Austin believed there was a substantial
threat of litigation and risk of liability to District if Richart were to proceed with litigation.  He
recommended that the matter be set for the Board's consideration at a closed session.
"On June 14, 2007, Attorney Ottilie sent a letter to District's legal counsel proposing that they
discuss resolution of claims Richart believed she possessed arising from the trustees'
individual and collective conduct.  [Fn. omitted.]  Thereafter the Board issued a meeting
agenda for June 19, 2007, announcing that a special Board meeting/closed session would be
held by the Board under the following notice: 'Conference with Legal Counsel—Anticipated
Litigation: Significant exposure to litigation pursuant to subdivision (b) of Section 54956.9: One
     "On June 19, 2007, the Board adjourned to a closed session, during which the Board and
Richart, with the assistance of Judge Moon, reached a settlement in which Richart agreed to
step down as president and serve as a consultant for the next 18 months. Judge Moon never
entered the boardroom; groups of Board members in numbers less than a quorum left the
room to meet with Judge Moon.  The settlement agreement was drafted by District's counsel
and signed by each trustee, including the minority trustees.  In part the settlement and release
agreement states:  'A dispute has occurred between the parties regarding Richart's
employment with the college.  Richart through her legal counsel filed a letter to explore and/or
resolve claims. . . .  The parties wish to settle their dispute.'  Under the agreement, District
would for 18 months pay Richart her monthly salary at her contract rate as well as 'step and
CPI increases,' 'existing expenses' of $3,150 per month, health benefits, and contributions to
the state retirement system.  The agreement also required District to pay Richart $43,500 in
personal attorney fees 'incurred to date related to her employment and potential claims against
the COLLEGE,' and $650,000 'for damages' upon the agreement's execution.  In exchange,
Richart agreed to 'step down' on June 30, 2007.  The agreement includes a mutual general
release of all claims, as well as a Civil Code section 1542 waiver."  (Page, supra, 180 Cal.App.
4th at pp. 479-482.)
     Under the terms of the settlement agreement, Richart continued working as a consultant to
District through December 31, 2008.  For its part, District appointed a new president and
     B.  Taxpayer Challenge of Settlement and Employment Status
As we noted, after the settlement agreement was executed, a taxpayer and resident of District,
Leon Page, sued District and Richart, alleging the settlement agreement was void because it
provided Richart with compensation which exceeded the limits set forth in Government Code
sections 53260 and 53261.  Page also alleged that in entering into the settlement, District
violated the open meeting requirements of The Ralph M. Brown Act (Gov. Code, § 54950.5 et
seq.; Brown Act).  By way of demurrer and motion for summary adjudication, District prevailed
in the trial court.  On appeal, however, we agreed with Page that the settlement exceeded the
compensation limits of Government Code sections 53260 and 53261, and he had alleged a
viable Brown Act claim.  (Page, supra, 180 Cal.App.4th at pp. 478-479.)
On December 17, 2009, shortly after our opinion in Page was filed, the Board voted to not
renew Richart's employment contract.
Between March 31, 2010, and December 1, 2010, Richart sent District correspondence in
which she expressed her willingness to return to her job as president and superintendent.  
District did not respond to her offers.
On August 12, 2010, following issuance of our remittitur in Page, the trial court entered a
judgment in favor of Page in which it invalidated the settlement agreement and determined
Richart and District were each required to return the consideration each had received and
both were relieved of any obligations they had undertaken.   In what she characterizes as an
act of good faith, Richart began sending District monthly checks in the amount of $5,000.
In December 2010, District notified Richart the health benefits it provided to her would be
     C.  Current Proceedings
     1.  Complaint
In January 2011, after receiving notice from District that her health benefits would be
terminated, Richart filed a complaint against District and the three minority members of the
Board.  Richart alleges that under the terms of her employment contract, she had a
reasonable expectation she would serve as president and superintendent of MiraCosta
College through 2014.  She bases this allegation on the fact that at the time she was recruited
in 2004, District asked her for a 10-year commitment; under the terms of her contract she was
to receive an annual review, and if the review was satisfactory, her contract would be renewed
each year for a new four-year period.
     Richart alleges the defendants violated her due process rights under the United States and
California Constitutions, committed a breach of contract, violated the whistleblower provisions
of Labor Code section 1102.5 et seq. and Government Code section 12653, and threatened
her in violation of Civil Code section 52.1.  
Richart essentially asserts four theories of substantive liability: (1) in her first, second and fifth
causes of action, Richart alleges that although due process and her employment contract
obligated District to provide her with an annual review and continue her employment if the
review was satisfactory, her employment was terminated without providing her the required
annual review; (2) in her third and fourth causes of action, Richart alleges District's actions and
the individual defendants' statements have stigmatized her and prevented her from obtaining
any employment commensurate with her position at District; (3) in her sixth, seventh and eighth
causes of action, Richart alleges she was terminated in retaliation for investigating the thefts
reported to her and reporting the results of the investigation to the district attorney; and (4) in
her ninth cause of action, Richart alleges she was subject to violent threats within the meaning
of Civil Code section 52.1.
In addition to her substantive causes of action, Richart also alleged a cause of action for
declaratory relief in which she asked the trial court to determine her obligations and District's
obligations with respect to the consideration each received under the terms of the invalid
settlement agreement.  In particular, she alleged that under the Page judgment she owed
District $775,000, but that this amount should be offset by whatever amount the court
determines District owed her in unpaid salary and benefits.
After filing the complaint, Richart also stopped making $5,000 monthly good-faith payments to
2.  District's Response
District responded in two ways to Richart's complaint.  First, by way of a levy of execution on
the Page judgment, District attempted to collect from Richart the money it paid her under the
settlement agreement.  Richart objected to the levy, and the trial court sustained her
objection.  The trial court found the Page judgment it entered on remand was not a money
judgment but contemplated further proceedings to determine the respective rights of the
Second, District filed a motion to strike under section 425.16.   As we indicated, the trial court
found Richart's claims against District are not within the scope of the anti-SLAPP statute
because the trial court found the claims do not arise from the exercise of District's petitioning
or free speech rights.  Although the trial court found the statements made by the three minority
Board members in 2006 and 2007 were protected activity within the meaning of section
425.16, the trial court found District's termination of employment in 2010 was not protected by
the anti-SLAPP statute.  District filed a timely notice of appeal.
     The procedure governing motions to strike is well established.  "'[S]ection 425.16 requires
that a court engage in a two-step process when determining whether a defendant's anti-SLAPP
motion should be granted.  First, the court decides whether the defendant has made a
threshold showing that the challenged cause of action is one "arising from" protected activity.  
[Citation.]  If the court finds such a showing has been made, it then must consider whether the
plaintiff has demonstrated a probability of prevailing on the claim.'  [Citation.]"  (Episcopal
Church Cases (2009) 45 Cal.4th 467, 477, quoting City of Cotati v. Cashman (2002) 29 Cal.
4th 69, 76.)
     The scope of actions covered by the statute is now also fairly well defined.  "'[T]he mere
fact that an action was filed after protected activity took place does not mean the action arose
from that activity for the purposes of the anti-SLAPP statute.  [Citation.]  Moreover, that a
cause of action arguably may have been "triggered" by protected activity does not entail that it
is one arising from such.  [Citation.]  In the anti-SLAPP context, the critical consideration is
whether the cause of action is based on the defendant's protected free speech or petitioning
activity.'"  (Episcopal Church Cases, supra, 45 Cal.4th at p. 477, quoting Navellier v. Sletten
(2002) 29 Cal.4th 82, 89.)
     In Episcopal Church Cases, a doctrinal dispute arose between a local Episcopal parish and
the Protestant Episcopal Church in the United States of America (the national church).  The
local parish and its members objected to the ordination by the national church of an openly
gay bishop in New Hampshire and voted to disaffiliate the parish from the national church.  In
response, the local Episcopal diocese and the national church brought an action to recover
church property from the local parish and various individuals associated with the parish.  In
particular, the diocese and the national church sought to recover the church building and land
on which the building sits.
     Among other matters, the local parish and the individuals brought an anti-SLAPP motion,
which the trial court granted.  The Court of Appeal reversed, and on review, the Supreme
Court affirmed the Court of Appeal:  "In filing this action, the Los Angeles Diocese sought to
resolve a property dispute.  The property dispute is based on the fact that both sides claim
ownership of the same property.  This dispute, and not any protected activity, is 'the gravamen
of principal thrust' of the action.  [Citation.]  The additional fact that protected activity may lurk
in the background -- and may explain why the rift between the parties arose in the first place --
does not transform a property dispute into a SLAPP suit."  (Episcopal Church Cases, supra, 45
Cal.4th at pp. 477-478, second italics added.)
     In determining whether the gravamen or thrust of an action is within the scope of the
statute, the trial court considers "the pleadings, and supporting and opposing affidavits stating
the facts upon which the liability or defense is based."  (§ 425.16, subd. (b)(2); see also Wang
v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 801 (Wang).)
     "On appeal, we review de novo the trial court's ruling on the motion to strike.  [Citation.]  
Whether section 425.16 applies to a particular complaint amounts to a legal question subject
to this de novo standard of review.  [Citation.]"  (Wang, supra, 153 Cal.App.4th at p. 801.)  
     The principal dispute between the parties on appeal is not over the principles which govern
application of motions to strike under the anti-SLAPP statute.  The parties largely agree on the
applicable law.  They disagree vigorously, however, with respect as to how we should interpret
the claims asserted in Richart's complaint.  Because of this dispute, and because we conclude
that some of the claims are covered by the statute and some are not, we consider the causes
of action set forth in the complaint separately.
A.  Wrongful Termination Claims
In her first, second and fifth causes of action, Richart asserts what we characterize as wrongful
termination claims.  The first and second causes of action allege that under the United States
and California Constitutions, Richart had a due process right to a review before her
employment was terminated.  In the fifth cause of action, Richart alleges that her right to a
review before her employment was terminated arises out of her employment contract, which
she contends obligated District to extend her employment each year upon completion of a
satisfactory review.
The gravamen of each of these claims against District is its failure to reinstate Richart to her
position as president and superintendent of the college following our decision in Page and
thereafter give her the annual review called for in the renewal provisions of her employment
contract.  With respect to District's liability for these alleged failures in 2009 and 2010, the
2006 and 2007 free speech activities of the three individual defendants certainly were a factual
predicate.  In the absence of those activities, Richart would not have entered into the
settlement agreement, the settlement would not have been challenged and it would not have
been found invalid.  
However, as in Episcopal Church Cases, the fact that as a historical matter free speech
activities created the context for a particular dispute does not bring a cause of action within the
scope of the anti-SLAPP statute.  A cause of action falls within the scope of the anti-SLAPP
statute only when it alleges the defendant's free speech activities are themselves actionable.  
(See Episcopal Church Cases, supra, 45 Cal.4th at pp. 477-478.)  With respect to District's
alleged liability for its failure in 2009 and 2010 to reinstate Richart and provide her with a
review, Richart is not relying on District's exercise of any free speech activity.  The actionable
conduct—the thrust or gravamen of Richart's  wrongful termination causes of action against
District—is District's failure in 2009 and 2010 to perform duties allegedly required by Richart's
contract and the state and federal Constitutions.
As in the trial court, District essentially argues Richart cannot pursue her theory she was
terminated in 2009 or 2010.  District argues the 2010 judgment invalidating its settlement with
Richart did not operate to reinstate Richart as an employee and thus Richart could not have
been terminated after the Page opinion or later Page judgment.  District argues that instead,
Richart was terminated in 2007 when the free speech activities of the individual defendants
made it impossible for her to fulfill her duties as president and superintendent.  Because a
constructive termination in 2007 caused by the minority trustees' statements would be more
directly connected to free speech activities, District contends we must interpret her complaint
as falling within the scope of section 425.16.  We are not persuaded by this argument.
While District's view of the impact of the trial court's 2010 judgment may ultimately prevail, at
this point, Richart is free to pursue her theory she was not terminated until 2009 or 2010.  In
this regard, we note that in December 2009, the Board adopted a resolution stating District
would not renew Richart's employment contract.  As Richart contends, this is evidence that in
2009 District itself believed that in the absence of the settlement agreement, Richart was still
an employee.  Suffice it to say, the actual date of Richart's termination is not something that we
can resolve on this record.  Rather, at this point, we must take Richart's allegations as she
asserts them, to wit:  She was terminated at some point in 2009 or 2010.
In short, Richart's allegations she was terminated in violation of her constitutional and contract
rights are not subject to an anti-SLAPP motion to strike.
     B.  Stigmatization Claims
     1.  Arising Out of Free Speech Activities
In her third and fourth causes of action, Richart alleges her termination by District and the
negative statements minority members made about her have stigmatized her in the educational
community and have made it impossible for her to find alternative employment.   
     In her declaration submitted in opposition to District's motion to strike, Richart stated "[t]
here were a multitude of statements leading up to my termination by the MiraCosta Trustees in
2010.  These have stigmatized me and when combined with the termination, have made it, so
far, impossible for me to find any comparable educational positions, or even lower level
educational jobs."  Richart's declaration goes on to quote from 16 public statements allegedly
made by the minority members of the Board criticizing her performance and conduct.   
In light of Richart's own description of the factual basis of her stigmatization claims, it is clear
the statements Richart relies on are not mere evidence of some other tort, but are in fact the
tortious conduct which she contends gives rise to District's liability.  (Cf. Wang, supra, 153 Cal.
App.4th at pp. 804-805.)  It is also plain the statements about Richart's performance as the
administrator of a large public institution were made with respect to a matter of considerable
public interest within the meaning of section 425.16, subdivision (e)(3).  Thus, unlike the
wrongful termination claims, Richart's stigmatization claims do arise from free speech activities
within the scope of section 425.16.  (See Tuchscher Development Enterprises, Inc. v. San
Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1233 [statements of officials of public
entity encouraging competitor to challenge existing agreement with public entity which are
basis for contract actions against public entity are covered by section 425.16].)
Accordingly, we must consider whether in opposing the motion to strike, Richart established a
probability of success on the merits of her stigmatization claims.  (§ 425.16, subd. (b)(1).)  
2.  Probability of Success on the Merits
"'We decide the second step of the anti-SLAPP analysis on consideration of "the pleadings
and supporting and opposing affidavits stating the facts upon which the liability or defense is
based."  [Citation.]  Looking at those affidavits, "[w]e do not weigh credibility, nor do we
evaluate the weight of the evidence.  Instead, we accept as true all evidence favorable to the
plaintiff and assess the defendant's evidence only to determine if it defeats the plaintiff's
submission as a matter of law."  [Citation.]  [¶]  That is the setting in which we determine
whether plaintiff has met the required showing, a showing that is "not high."  [Citation.]  In the
words of the Supreme Court, plaintiff needs to show only a "minimum level of legal sufficiency
and triability."  [Citation.]  In the words of other courts, plaintiff needs to show only a case of
"minimal merit."  [Citations.]'
"While plaintiff's burden may not be 'high,' he must demonstrate that his claim is legally
sufficient.  [Citation.]  And he must show that it is supported by a sufficient prima facie showing,
one made with 'competent and admissible evidence.'  [Citations.]"  (Hecimovich v. Encinal
School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 468-469.)
Richart's declaration in opposition to the motion to strike shows that indeed she was subjected
to a number of highly critical statements which questioned her character and competence and
which, taken together with her later termination, might have damaged her reputation.  In
particular, she relies on statements accusing her of threatening Board members and vandalism
of a Board member's home.  Richart's declaration further sets forth her unsuccessful efforts to
obtain similar employment elsewhere.  
Contrary to District's argument, these accusations of threats and vandalism do involve moral
turpitude and thus are sufficient to support a stigmatization claim.  (See Loehr v. Ventura
County Community College Dist. (9th Cir. 1984) 743 F.2d 1310, 1317.)  Thus, given Richart's
minimal burden, the record shows a probability of success on the merits of the stigmatization
claims sufficient to defeat District's motion.
     C.  Retaliation
     In her sixth, seventh and eighth causes of action, Richart alleges she was terminated in
retaliation for her role in investigating and reporting the wrongdoing that occurred in the
college's horticultural department.  Like her wrongful termination claims, our resolution of these
causes of actions depends on when in fact Richart was terminated.        If, as Richart contends,
she was terminated in 2009 and 2010, the free speech activities of the minority trustees in
2006 and 2007, while relevant in suggesting a retaliatory motive for her later termination, are
no more than evidence which supports her retaliation claims and do not bring those claims
within the protection provided by section 425.16.  (See Gallimore v. State Farm Fire & Casualty
Ins. Co. (2002) 102 Cal.App.4th 1388, 1399.)  As we determined with respect to Richart's
wrongful termination causes of action, nothing in the record precludes Richart from pursuing
her theory she was terminated in 2009 and 2010.  Thus, Richart's retaliation claims are not
subject to section 425.16   
D.  Threats
In her ninth cause of action, Richart alleges that following her reports to the Board and the
district attorney about wrongdoing at the college, she was the victim of a death threat in
violation of Civil Code section 52.1.  In support of this allegation, in her declaration in
opposition to the motion to strike, Richart quoted the threat, which was sent to her office and
included this statement:  "DO US ALL A FAVOR AND JUST LEAVE!  IF YOU DON'T YOU MAY
The references to Richart's car and residence take this statement outside the realm of public
hyperbole that might occur in a highly charged controversy.  Such serious and targeted threats
of violence, even in a public controversy, are not protected by the free speech or petitioning
provisions of the state or federal Constitutions.  (See Siam v. Kizilbash (2005) 130 Cal.App.4th
1563, 1570.)  Thus, Richart's Civil Code section 52.1 cause of action was not subject to an
anti-SLAPP motion to strike.  (Siam v. Kizilbash, supra, at p. 1570.)
E.  Declaratory Relief
In her declaratory relief cause of action, Richart simply requests a determination of the parties'
respective rights following entry of the Page judgment.  Nothing in that claim implicates any
free speech or petitioning activities of either District or any members of the Board and thus it is
not subject to section 425.16.
     The order denying District's motion to strike is affirmed.  Richart to recover her costs of

BENKE, Acting P. J.


     McDONALD, J.

     O'ROURKE, J.
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Some parts of Victoria Richart's lawsuit survive MiraCosta College's
Special Motion to Strike, or "SLAPP" suit
Victoria Munoz Richart

Robert P. Ottilie
Law Office of Robert P. Ottilie
444 W C St Ste 320
San Diego, CA 92101

MiraCosta Community

Michael T. Gibbs
Gibbs & Fuerst
600 "B" St., Suite 2300
San Diego, CA 92101
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For background on the case, click HERE.