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

FEB 2 5 2015

Attorneys for Plaintiff

SUPERIOR COURT OF CALIFORNIA,


COUNTY OF MONTEREY

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GERIT SAND; COBBLESTONE


BAKERY, A SOLE PROPRIETORSHIP

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

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case No. M130393


Date: March 6, 2015
Time: 9 : 0 0 am
Judge:
Department: 14
MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
DEFENDANT'S DEMURRER

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I.

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STATEMENT OF FACTS

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This case involves an action against the Defendant, CITY OF

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CARMEL BY THE SEA in which Plaintiffs GERIT SAND and COBBLESTONE

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BAKERY, a sole proprietorship, which is owned and operated by

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Plaintiff GERIT SAND.

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On May 5, 2014, an oral agreement was concluded between

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Plaintiffs and Defendant through the Defendant's agent.

On July

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1, 2014, the CITY OF CARMEL BY THE SEA amended their Guidelines

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for participation in the Farmers Market (also, hereinafter

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referred to additionally as "Market") to require certain

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businesses and vendors be excluded from the local Farmers Market.

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That exclusion required Prepared Food Purveyors and Vendors to

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operate retail establishments within the boundaries of the CITY


MEMORANDUM OF POINTS AND
AUTHORITIES IN
OPPOSITION TO
DEFENDANT'S DEMURRER
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OF CARMEL BY THE SEA, and Farmer Participants were required to

sell only organic products at the market.

Defendant in its Demurrer alleges, as stated in the minutes

of the City Council from July 1, 2014, that the participation of

all vendors at the "CARMEL ARTISAN FOOD EXPERIENCE," the Market,

was restricted to those "from San Benito, Santa Cruz, and

Monterey Counties and prepared foods only from businesses in the

City of Carmel."

Plaintiff further alleges that he was excluded from the

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chain of commerce by the actions of the CITY OF CARMEL BY THE SEA

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by the discriminatory actions of that City.

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An action by the Plaintiff alleging (1) breach of contract;

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(2) inducing breach of contract; and (3) negligent interference

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with a prospective advantage.

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Defendant CITY OF CARMEL BY THE SEA was served on January 6,


2015, with this action which was filed on December 16, 2014.

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II.

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LAW AND ARGUMENT

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A.

Standard of Review
Plaintiff agrees with Defendant as to the standard of review

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for reviewing the sufficiency of the complaint against the

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demurrer.

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true and look only at the face of the pleading.

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treat the demurrer as admitting all material facts properly

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pleaded.

Such a review requires the Court to take all facts as


The Court will

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MEMORANDUM OF POINTS AND


AUTHORITIES IN
OPPOSITION TO
DEFENDANT'S DEMURRER
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B.

by the Sea and the West Coast Farmers Market Association?

Does an Agency Relationship Exist Between the City of Carmel

Defendant asserts that no agency relationship exists but

only a license to the West Coast Farmers Market Association to

establish contracts between that association and vendors.

A written contract called "LICENSE AGREEMENT" was concluded

between the City of Carmel by the Sea and the West Coast Farmers

Market Association on May 29, 2013.

an agency relationship, or any other kind of relationship, is

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important, and may even be persuasive, it is not conclusive in

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the determination of whether and agency relationship has been

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created or has not been created.

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Though a writing describing

In the case at hand, the City of Carmel by the Sea does, in

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fact, have a written agreement with the West Coast Farmers Market

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Association describing the agreement as a "LICENSE AGREEMENT."

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Such an agreement, regardless of the title given to the

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agreement, is not precluded from being an express agency

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agreement simply by use of the licensing terminology.

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The agency relationship requires the consent of both parties

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to the agency contract.

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behalf of the principal, and subject to the control of the

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principal, requires the consent of both the principal and the

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agent.

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That is, consent for the agent to act on

Since the West Coast Farmers Market Association was acting

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on behalf of the City of Carmel by the Sea in attracting business

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to the City of Carmel by the Sea and in giving local businesses

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an additional outlet for their goods in such a way as to benefit

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the City of Carmel by the Sea, and since the West Coast Farmers
MEMORANDUM OF POINTS AND
AUTHORITIES IN
OPPOSITION TO
DEFENDANT'S DEMURRER
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Market Association was acting under the control of the City of

Carmel by the sea through the city's ordinances, and since both

the City of Carmel by the Sea and the West Coast Farmers Market

Association agreed to this relationship through their "LICENSE

AGREEMENT," an agency relationship does exist.

Consideration between the principal and agent is not

required in the establishment of the agency relationship.

An agencyrelationship can be express, or a course of prior

dealings between the principal and the agent can imply the

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existence of an agency.

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Though most of the activity of the West Coast Farmers Market

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Association is expressed within the contract known as the

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"LICENSE AGREEMENT," at least some of the activity is through the

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implied consent of the principal, which is the City of Carmel by

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the Sea, and a course of conduct created by and within the

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farmers market.

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An agent has the authority to contract on behalf of its

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principal.

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Carmel by the sea by the West Coast Farmers Market Association

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is, in fact, a contract with the City of Carmel by the sea, and

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the "LICENSE AGREEMENT" is a contract establishing that agency

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relationship.

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C.

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First Cause of Action.

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Thus, any contract created on behalf of the City of

Plaintiff Does Not Allege any Cause of Action in Tort in his

Plaintiff makes no claim in tort in his First Cause of

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Action and makes only a claim in breach of contract.

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Plaintiff's claim cannot fail for this reason.

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D.

Thus,

Plaintiff Should Have the Right to Amend His Complaint.


MEMORANDUM OF POINTS AND
AUTHORITIES IN
OPPOSITION TO
DEFENDANT'S DEMURRER
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The Supreme Court of California, in the case of Buckaloo v.

Johnson, 14 Cal.3d 815 (1975), held that all material facts

pleaded in the complaint and those which arise by reasonable

implication are deemed true.

Collection Assn. (1972) 7 Cal.3d 94, the Supreme Court of

California held that "In reviewing the sufficiency of the

plaintiff's complaint against the defendant's demurrer, we

must treat the demurrer as admitting all properly pleaded factual

allegations of that complaint."

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Supreme Court of California, Minsky v. City of Los Angeles, 113

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Cal.Roptr 102, 107, that Court held that, "It is axiomatic that

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if there is a reasonable possibility that a defect in the

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complaint can be cured by amendment or that the pleading

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liberally construed can state a cause of action, a demurrer

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should not be sustained without leave to amend.

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Cal.Procedure, Pleading,

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In the case of Barquis v. Marchants

In another case before the

44, p. 2449 .

(3 Witkin,

"

Thus, a demurrer should not be sustained without leave to

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amend if the complaint, liberally construed, can under any theory

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state a cause of action, or if the defect in the currently stated

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cause of action can be cured by amendment.

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III.

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CONCLUSION

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The Defendant's demurrer to this action should, because it

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sounds in breach of contract established through its agent with

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the Plaintiff, be overruled.

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file his answer, or, in the alternative, Plaintiff should be

The Defendant should be required to

MEMORANDUM OF POINTS AND


AUTHORITIES IN
OPPOSITION TO
DEFENDANT'S DEMURRER
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permitted to file an amended Complaint in this matter.

x~Mc~

Dated this February 24, 2015

TER

D. STARK

LAW OFFICES OF TERRY D. STARK

107 California Avenue

Oakdale, California 95361

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MEMORANDUM OF POINTS AND


AUTHORITIES IN
OPPOSITION TO
DEFENDANT'S DEMURRER
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