first amended complaint for damages 03-25-15 (m130393)
TRANSCRIPT
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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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8/9/2019 First Amended Complaint for Damages 03-25-15 (m130393)
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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.
6
7
GENER L F CTU L LLEG TIONS
8
9
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
13
con t rac t s
between the
Farmers
Market
and
the
vendors who
operate
14 booths a t the Farm
e
r s Market.
15
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
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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
6
the
CITY OF
C RMEL BY
THE SEA
7
17.
Defendant
CITY OF
C RMEL BY
THE
SEA
through i t s agent
8
the
West
Coast
Farmers Market Assoc ia t ion con t rac t ed with
9
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.
9
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 .
6
27
PR YER
FOR R LI F
28
7
FIRST MENDED
COMPL INT
FOR D M GES
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1
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 ;
5
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 ;
8
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 .
10
11
12
13
14
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