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TERRY D. STARK
LAW OFFICES OF TERRY D. STARK
107 California Avenue
Oakdale, California 95361

MAR 2 5 2015

Attorney for Plaintiff

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SUPERIOR COURT OF CALIFORNIA, City

COUNTY OF MONTEREY

Of Carmel-by-the- ea
MAR

2 5 2015

Received

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GERIT SAND; COBBLESTONE

BAKERY, A SOLE PROPRIETORSHIP

Case No . M130393
Date:
Time:
Judge: Hon. Susan J. Matcham
Department: 15

Plaintiff,
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vs.
CITY OF CARMEL BY THE SEA;
DOES 1 THROUGH 20

FIRST AMENDED COMPLAINT FOR

DAMAGES

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Defendant.
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PlaintiffS GERIT SAND and COBBLESTONE BAKERY, A SOLE

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PROPRIETORSHIP, for their Complaint against Defendants CITY OF

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CARMEL BY THE SEA and DOES 1 through 20 allege as follows:

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INTRODUCTION

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1.

Upon information and belief, Defendant CARMEL BY THE SEA

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(also, hereinafter referred to as the "CITY OF CARMEL BY THE

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SEAn} is a resident of and located in Monterey County, State of

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California, and, in some way owns or controls or manages the

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Carmel Artisan Food Experience (herein after , "Event" or "Farmers

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Marketn}.

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2.

Defendant CARMEL BY THE SEA is a municipal corporation

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established within the State of California and, at all times

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relevant to this action, governed a certain area as a municipal

FIRST AMENDED COMPLAINT
FOR DAMAGES
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corporation for the purpose of serving and governing the

residents therein.

of government a city council and city administrator.

3.

The CITY OF CARMEL BY THE SEA has as its form

While controlling and operating its Farmers Market, the

CITY OF CARMEL BY THE SEA OPERATED THE MARKET THROUGH THE West

Coast Farmers Market Association, as its Agent (hereinafter,

"Agent").

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4.

Plaintiff GERlT SAND is a resident of the State of

California with residence in the County of Stanislaus.

5.

Plaintiff GERlT SAND is the sole proprietor of the

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bakery, a business located in Stanislaus County with its primary

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offices located at 6601 Third Street, Riverbank, California

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95367.

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6.

The true names and capacities, whether individual,

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corporate, associate, or otherwise of Doe 1 through Doe 20,

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inclusive are unknown to Plaintiffs, who therefore sue these

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defendants by these fictitious names and will seek leave of the

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Court to amend this Complaint to show the true names and

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capacities when they are ascertained.

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7.

Plaintiffs are informed and believe, and based thereon,

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allege that each of the Defendants designated as Doe 1 through

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Doe 20 , inclusive, is legally responsible in some manner for t he

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circumstances and happenings referred to in this Complaint, and

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caused damages, and Plaintiffs wil l seek leave of the Court to

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amend this Complaint to show these Defendants ' responsibility

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when the same has been ascertained and to include appropriate

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charging allegations.

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8.

Venue is proper based on California Code of Civil

FIRST AMENDED COMPLAINT
FOR DAMAGES
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Procedure Section 394, as the allegations contained herein

occurred within the County of Monterey, State of California, and

are against the CITY OF CARMEL BY THE THE SEA.

proper based on California Code of Civil Procedure Section

410.10.

Jurisdiction is

GENERAL FACTUAL ALLEGATIONS

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9.

The CITY OF CARMEL BY THE SEA, California, has directly

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or indirectly or through an Agent or through its governing body

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exercised control over the operation of the Farmers Market and

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the establishment o f and maintenance of and performance of

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contracts between the Farmers Market and the vendors who operate

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booths at the Farme rs Market.

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10.

The Defendant has directly or indirectly or through an

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Agent or through its governing body es tablished and exercised

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control over the existence, operations, and makeup of the Farmers

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Market.

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has established guidelines (titled "Carme l Artisan Food

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Experience Guidelines (hereinafter, also called "Guidelines"),"

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contained within the July 1, 2014 Council Meeting Packet at Page

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142) that govern the makeup and operation of the Farme r s Market.

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11.

The CITY OF CARMEL BY THE SEA through its City Council

Under the provisions of the "Carmel Artisan Food

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Experience Guidelines," the Event Manager (West Coast Farmers

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Market Association) is established through an agreement with the

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City Council o f the CITY OF CARMEL BY THE SEA "to operate the

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Carmel-by-the-Sea Artisan Food Experience and Farme rs Market . "

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(See City Council Report, July 1, 2014; "Carmel Artisan Food

FIRST AMENDED COMPLAINT
FOR DAMAGES
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1
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Experience Guidelines," Section titled "EVENT ORGANIZATION").

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The Steering Committee and the professional event

manager carry out the work o f organizing a nd running the Event.

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The Steering Committee and the professional event

manager are sanctioned by the CITY OF CARMEL BY THE SEA and,

thus, are in existence because of actions by the CITY OF CARMEL

BY THE SEA.

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Under the provisions of the "Carmel Artisan Food

Experience Guidelines," in the Section titled "RULES," the Event

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Manager will develop and maintain a set of Event Rules,

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enforceable through fines and limits to participation "in

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accordance with these Event Guidelines, the Food and Agriculture

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Code, Article 5, Division 21, section 58101, 58101.5, 58103,

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58104, and all other applicable City, State, County, & Federal

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regulations .

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to whether the Rules meet the Guidelines , prior to t heir taking

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effect."

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15.

The Steering Committee must give final approval as

Under the provisions of the "Carmel Artisan Food

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Experience Guidelines," in the Section titled "ENFORCEMENT," the

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"Event Manager must strictly enforce the Guidelines and the Rules

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founded on them following a clear procedural agreement signed by

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all Participants."

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Because an agency relationship consists of an agreement

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between the principal and the agent, either expressed o r implied,

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in which the agent agrees to act on behalf of the principal or

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subject to the control of the principal and because in the

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instant case the West Coast Farmers Market Association agreed to

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act on behalf of the CITY OF CARMEL BY THE SEA and because the
FIRST AMENDED COMPLAINT
FOR DAMAGES
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CITY OF CARMEL BY THE SEA has consistently and through its

guidelines and direction by the AD HOC Committee of the CITY OF

CARMEL BY THE SEA exercised substantial control over the West

Coast Farmers Market Association.

Coast Farmers Market Association is functioning as an agent of

the CITY OF CARMEL BY THE SEA.

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Thus, as noted above, the West

Defendant CITY OF CARMEL BY THE SEA through its agent

the West Coast Farmers Market Association contracted with

Plaintiff on May 5, 2014, to permit Plaintiff to occupy a space

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within the Farmers Market operated for the CITY OF CARMEL BY THE

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SEA and permitting Plaintiff to sell his baked goods from one of

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the Farmers Market's designated rented spaces.

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18. For that space, Plaintiff was required to pay a fee of

$50.00 for each appearance at the Farmers Market.

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In order to be eligible to occupy and continue

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occupying a space in the Farmers Market, Plaintiff was required

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to obtain a Monterey County health permit, for which Plaintiff

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paid a fee of $571.00, issued by the Monterey County

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Environmental Health Department.

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20.

Plaintiff began operations in the Farmers Market

approximately April 23, 2014.

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On July 10, 2014, the Defendant CITY OF CARMEL BY THE

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SEA breached its contract with Plaintiff by stopping Plaintiff

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from operating their booth within the Farmers Market.

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22.

At some point in time, Defendant decided that Plaintiff

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and certain others would not be permitted to continue their

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contracts with the Farmers Market if those persons, and others,

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did not have businesses with physical storefronts in the downtown

FIRST AMENDED COMPLAINT
FOR DAMAGES
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area within the city limits of the Defendant CITY OF CARMEL BY

THE SEA.

23.

As a result of the decision of Defendant through its

city council to discontinue permitting Plaintiff, and others, to

continue utilizing the facilities of the Farmers Market if the

Plaintiff, and others, did not have physical storefronts in the

downtown area within the Defendant CITY OF CARMEL BY THE SEA,

Plaintiff, and other businesses, were terminated from operations

within the Farmers Market.

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24.

Plaintiffs, and others, were thereby discriminated

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against when Defendants acted in favor of their loc al businesses

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to the exclusion of Plaintiff, and others, who had already

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contracted with the Defendant CITY OF CARMEL BY THE SEA through

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the Farmers Market for places of operation within the Farmers

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Market.

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25.

Such an act of exclusion results in the r emoval o f

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persons, business es , and pro ducts from the chain of commerce,

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both intrastate and interstate.

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FIRST CAUSE OF ACTION

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BREACH OF CONTRACT

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Plaintiff incorporates paragraphs 1 through 25,

inclusive , as fully set forth herein.

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Defendants entered into an oral agreement on or about

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May 5, 2014, with Plaintiffs through the Defendants' Age nt , The

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West Coast Farmers Market Association, whereby Defendants would

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permit Plaintiffs to operate booths within the Farmers Market

FIRST AMENDED COMPLAINT
FOR DAMAGES
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located in and operated for the benefit of the Defendant CITY OF

CARMEL BY THE SEA.

28.

On July 1 , 2014, the Defendant CITY OF CARMEL BY THE

SEA passed a new set of guidelines known as the "Carmel Artisan

Food Experience Guidelines" restricting persons and businesses

from selling products in the Farmers Market who do not have fixed

structures or storefronts in the downtown business district of

the Defendant CITY OF CARMEL BY THE SEA.

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By the passage of these Guidelines the Defendant CITY

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OF CARMEL BY THE SEA abrogated its contract with the Plaintiff

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and failed to perform its contractual obligations to Plaintiff by

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failing to provide spaces for the operation of a booth within the

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Farmers Market owned by the Defendant CITY OF CARMEL BY THE SEA

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and operated by its Agent, the West Coast Farmers Market

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Association .

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30.

By abrogating the contract between the Defendant CITY

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OF CARMEL BY THE SEA, that city deprived Plaintiff GERIT SAND of

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the benefit of his bargain with the Def endant CITY OF CARMEL BY

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THE SEA.

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31.

By abrogating its contract with Plaintiffs, the CITY OF

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CARMEL BY THE SEA intentionally breached its contract with

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Plaintiffs.

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32.

It was reasonably foreseeable at the time that the CITY

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OF CARMEL BY THE SEA breached the contract, that Plaintiffs would

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sustain damages as a r e sult.

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PRAYER FOR RELIEF

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FIRST AMENDED COMPLAINT
FOR DAMAGES
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WHEREFORE, Plaintiffs, GERIT SAND and COBBLESTONE BAKERY, A SOLE

PROPRIETORSHIP, pray for judgment against Defendant, CITY OF

CARMEL BY THE SEA, as set forth below.

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For general damages according to proof;

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For special damages according to proof;

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For interest upon damages assessed at the statutory

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For the costs of this action; and

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For such other relief as the Court deems proper.

rate;

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Dated this

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of March, 2015

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TERR~

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LAW OFFICES OF TERRY D. STARK

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107 California Avenue

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Oakdale, California 95 3 61

STARK

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FIRST AMENDED COMPLAINT

FOR DAMAGES
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