First Amended Complaint for Damages 03-25-15 (m130393)

8/9/2019 First Amended Complaint for Damages 03-25-15 (m130393)

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TERRY

D.

STARK

LAW OFFICES

OF TERRY

D.

STARK

107 Cali forn ia Avenue

Oakdale, Cal i forn ia 95361

Attorney fo r P l a i n t i f f

MAR 2 5 2 15

SUPERIOR

COURT

OF

CALIFORNIA

City

f

Carmel by the

e

COUNTY

OF

MONTEREY MAR

2

5

2 15

GERIT

SAND;

COBBLESTONE

BAKERY

A SOLE PROPRIETORSHIP

Pla in t i f f ,

vs.

CITY OF

CARMEL

BY

THE

SEA;

DOES

1

THROUGH

20

Defendant.

eceived

Case

No . M130393

Date:

Time:

Judge: Hon. Susan

J .

Matcham

Department: 15

FIRST AMENDED

COMPLAINT FOR

DAMAGES

14 Pla in t i f fS

GERIT

SAND and

COBBLESTONE

BAKERY

A

SOLE

15 PROPRIETORSHIP

fo r t he i r Complaint agains t Defendants

CITY

OF

16 CARMEL BY THE

SEA

and DOES

1

through 20 a l l ege as follows:

17

18

INTRODUCTION

19

20

1.

Upon informat ion

and

bel i e f , Defendant CA

RMEL BY THE

SEA

21

(also ,

here ina f te r r e fe r red

to as

the CITY

OF

CARMEL

BY THE

22

SEAn} i s

a

res iden t

o f and

locate

d in Monterey

County,

Sta te

of

23 Cali forn ia ,

and,

in some way owns o r con t ro l s o r manages th

e

24 Carmel Art isan Food Experience

here in

a f t e r

Event o r

Farmers

25 Marketn}.

26

2. Defendant

CARMEL

BY THE

SEA

i s

a municipal corpora t ion

27 es tab l i shed within

the

Sta te of

Cal i fo rn ia

and, a t a l l t imes

2 8

re levant to t h i s

ac t ion ,

governed

a

c e r t a in

area as

a

municipal

FIRST AM ENDED

COMPLAINT

FOR DAMAGES


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1 corpora t ion

fo r

the

purpose of

serving

and governing

the

2 res idents there in . The CITY

OF

C RMEL

BY

THE SEA has as

i t s

form

3 of government a c i ty counci l

and c i t y adminis t ra tor .

4

3. While

cont ro l l ing

and

opera t ing

i t s Farmers Market, the

5 CITY

OF C RMEL BY THE

SEA

OPER TED THE M RKET THROUGH THE

West

6

Coast Farmers

Mark

e t

Associat ion,

as i t s Agent here inaf te r ,

7

Agent ) .

8

4.

Pla in t i f f GERlT

S ND

i s a res iden t of the Sta te of

9

Cal i fo rn ia with

res idence in the County of Stanis laus .

10

5.

Pla in t i f f

GERlT

S ND

i s the

so le

propr ie tor of the

11

bakery,

a

business

loca ted

in

Stanis laus

County

with i t s

primary

12 of f ices

loca ted

a t

6601

Third Stree t , Riverbank,

Cal i fo rn ia

13

95367.

14

6.

The t rue names

and

capaci t ies , whether indiv idual ,

15

corporate ,

associa te , o r otherwise of Doe 1 through Doe 20,

16

inc lus ive

are unknown to Pla in t i f f s , who therefore

sue

these

17 defendants by these f i c t i t i o u s names and w i l l

seek

leave of the

18

Court

to

amend t h i s

Complaint

to

show

the t rue

names

and

19 capac i t i e s when they

are ascer ta ined .

20 7.

Pla in t i f f s are

informed and

bel ieve ,

and

based the

reon,

21 a l l ege

tha t

each

of the Defendants

des ignated as

Doe 1

through

22

Doe

20 , inc lus ive , i s l e ga l ly respons ib le in some manner

for

t he

23

circumstances

and

happenings re fe r red

to in t h i s Complaint, and

24

caused damages, and Pla in t i f f s

w il l

seek leave of the

Court

to

25

amend t h i s

Complaint

to show these Defendants

re spons ib i l i ty

26 when the same

has been

ascer ta ined and to

include

appropr ia te

27 charging a l lega t ions .

28

8. Venue i s proper

based on

Cal i forn ia

Code

of Civi l

2

FIRST MENDED COMPL INT

FOR

D M GES


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1 Procedure

Sect ion

394, as the a l l ega t ions

contained

here in

2

occurred within the County o f Monterey, Sta te of Cal i forn ia ,

and

3 are

agains t the

CITY OF

C RMEL

BY

THE THE

SEA.

J u r i s d i c t i on i s

4

proper based on Cal i fo rn ia Code of Civi l

Procedure

Sect ion

5 410.10.

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GENER L F CTU L LLEG TIONS

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9. The

CITY

OF C RMEL BY THE

SEA, Cal i fo rn ia , has

d i rec t l y

10 or i nd i r e c t l y or through an Agent or through i t s

governing

body

11

exerc ised

con t ro l over the opera t io

n

of the Farmers

Market

and

12 the es tabl i shment

o f

and maintenance of and performance of

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con t rac t s

between the

Farmers

Market

and

the

vendors who

operate

14 booths a t the Farm

e

r s Market.

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10. The

Defendant has

d i rec t l y or i nd i rec t l y or through an

16 Agent

or through i t s governing body es

t ab l i shed

and

exerc ised

17 contro l

over the exis tence ,

opera t ions , and makeup of the Farmers

18

Market.

The

CITY

OF

C RMEL BY

THE

SE

through i t s

City

Council

19

has

es tab l i shed gui de l i n

es

( t i t l e

d

Carme

l Art isan Food

20

Experience Guidel ines (here inaf ter , a l so

ca l led Guide l ines ) ,

21

contained within the July

1,

2014 Council

Meeting

Packet a t Page

22 142)

tha t

govern the

makeup and

operat ion of

the

Farme r s Market.

23

11. Under the provis ions of the Carmel Art isan Food

24

Experience

Guide l ines , th

e

Event

Manager (

West Coast Farmers

25 Market Associat ion) i s establ i shed through

an

agreement

with

the

26 City

Council o f

the

CITY

OF C RMEL BY

THE S

E

to

opera te

th e

27

Carmel-by-the-Sea

Art isan Food Experience

and Farmer s

Marke t .

28

(See

City

Council Report, July 1, 2014; Carmel Art isan

Food

FIRST MENDED

COMPL INT

FOR D M GES

3


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1 CITY

OF C RMEL BY THE

SEA

has

cons i s t en t ly and through

its

2 gu ide l ine s

and

d i r e c t i on

by the D HOC

Committee

o f the

CITY OF

3

C RMEL

BY THE

SEA

exerc i sed subs t an t i a l con t ro l over the West

4 Coast

Farmers

Market Assoc ia t ion .

Thus,

as

noted

above, the West

5 Coast

Farmers

Market Assoc ia t ion

i s

func t ioning as an agen t of

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the

CITY OF

C RMEL BY

THE SEA

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17.

Defendant

CITY OF

C RMEL BY

THE

SEA

through i t s agent

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the

West

Coast

Farmers Market Assoc ia t ion con t rac t ed with

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P l a i n t i f f on

May

5, 2014, to

permit P l a i n t i f f

to

occupy a

space

10 within the Farmers

Market

opera ted

fo r

t he

CITY OF

C RMEL BY THE

11

SEA and

permi t t i ng

P l a i n t i f f

to s e l l h i s baked

goods

from

one

of

12 t he

Farmers

Marke t ' s des igna ted ren t ed spaces.

13 18.

For t ha t

space , P la in t i f f

was requ i red to pay

a fee

of

14 50.00

fo r

each appearance

a t

t he Farmers Market.

15

19.

In

order to

be e l i g i b l e

to

occupy

and

cont inue

16 occupying

a space

in

the Farmers

Market, P la in t i f f was requi red

17 to

ob ta in

a Monterey County hea l th permi t , fo r

whic

h

P l a i n t i f f

18 pa id

a

fee

of

571.00 ,

i s sued

by

t he

Monterey

County

19 Environmental

Hea l t h

Department.

20

20. P l a i n t i f f began

opera t ions

in t he Farmers Market

21 approximate ly

Apr i l 23,

2014.

22

2 1. On Ju ly

10, 2014, the

Defendant CITY OF

C RMEL BY THE

23

SEA breached

its

c o n t r a c t with

P l a i n t i f f by s topping

Pla inti

24

from opera t ing

t h e i r booth

with in the

Farmers Market.

25

22.

At some po in t

in

t ime, Defendant

dec ided

t ha t P l a i n t i f f

26 and ce r t a in o the r s would

n

o t be pe rmi t t ed to con t inue t h e i r

27 contrac ts with the

Farmers

Market

i f

those persons ,

and

others ,

28

d id not have

bus inesses

w ith phys ica l s t o r e f ron t s

in

the

downtown

FIRST

MENDED

COMPL INT

FOR D M GES


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1 located in and

opera ted

fo r the

benef i t of

the Defendant CITY OF

2

C RMEL

BY THE SEA.

3

28.

On Ju ly 1 2014, the Defendant CITY OF

C RMEL BY

THE

4 SE passed a new se t of guidel ines known as the Carmel Art isan

5 Food

Experience Guidel ines r e s t r i c t ing

persons and businesses

6

from

se l l i ng

products

in

the Farmers Market

who

do not have

f ixed

7 s t ruc tu res o r s tore f ronts in the downtown

business

d i s t r i c t of

8 the Defendant CITY OF C RMEL BY THE SEA.

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29. By the passage of these Guidel ines the Defendant CITY

10 OF C RMEL BY THE

SE

abrogated i t s

con t rac t

with the

Pla in t i f f

11 and fa i l ed to

perform

i t s cont rac tua l

ob l iga t ions to

Pla in t i f f by

12 fa i l ing

to

provide

spaces

fo r

th

e operat ion of a

booth

within the

13 Farmers Market owned by the Defendant CITY OF C RMEL BY THE SEA

14 and operated by

i t s

Agent,

the West Coast Farmers

Market

15

Associat ion .

16 30.

By

abrogat ing

the cont rac t between

the Defendant

CITY

17

OF C RMEL

BY THE

SEA t ha t

c i t y

deprived

Pla in t i f f

GERIT S ND

of

18

the

benef i t

of

h i s

barga in

with

the Def

endant

CITY

OF

C RMEL

BY

19 THE SEA.

20

31. By abrogat ing i t s

cont rac t

with Plain

t i f f s the CITY

OF

21 C RMEL

BY

THE SEA i n t e n t iona l ly breached i t s

cont

rac t

with

22

Pla in t i f f s .

23

32. t

was

reasonably

foreseeable

a t

the

t ime

tha t

the

CITY

24 OF C RMEL

BY

THE SEA breached the cont rac t tha t Pl a i n t i f f s would

25 sus ta in damages

as

a r e

su l t .

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PR YER

FOR R LI F

28

7

FIRST MENDED

COMPL INT

FOR D M GES


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WHEREFORE Pla in t i f f s

GERIT

SAND

and COBBLESTONE BAKERY A SOLE

2 PROPRIETORSHIP

pray

fo r

judgment

agains t

Defendant

CITY OF

3 CARMEL BY

THE

SEA as se t

for th

below.

4 1. Fo r genera l damages according to

proof ;

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2. For spec ia l damages according to

proof ;

6 3. For i n t e r e s t

upon

damages assessed a t the s t a tu to ry

7 ra te ;

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4. For the costs of t h i s ac t ion ; and

9 5.

For such

o ther r e l i e f as the Court deems proper .

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r ~

Dated th i s

ff_

~ y of

March

2015

~ ~ ~ i _

. -

X ~ 2 j ; _ z

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T R R STARK

LAW OFFICES OF

TERRY

D.

STARK

107 Cal i forn ia Avenue

Oakdale

Cal i forn ia 95

3

61

FIRST AMENDED

COMPLAINT

FOR

DAMAGES

First Amended Complaint for Damages 03-25-15 (m130393)

Documents

Transcript of First Amended Complaint for Damages 03-25-15 (m130393)