Republic of the Philippines

REGIONAL TRIAL COURT

9th
Judicial Region
Branch 14, Zamboanga City
AMERKHAN SABDULA
Plaintiff,

-versus- Civil Case No. _______________

For: Collection of a Sum of Money

RALPH JOSEPH ZERNA

Defendant.
x-------------------------------------x

RALPH JOSEPH ZERNA

Defendant.
x-------------------------------------x

RALPH JOSEPH ZERNA

Defendant.
x-------------------------------------x

COMPLAINT

Plaintiff, thru the undersigned Counsel, unto this Honorable Court,

respectfully alleges:

1. That Plaintiff is of legal age, Filipino, single and with residence at

Guiwan, Zamboanga City. Plaintiff may be served with notices,
orders and processes of this Honorable Court through the
undersigned counsel;
2. That Defendant is likewise of legal age, Filipino, single and with
residence at San Roque, Zamboanga City, where he may be
served with summons;
3. The plaintiff and the defendant have capacity to sue and be sued.
4. That sometime, January 5, 2014, in the city of Zamboanga, for
value received, the defendant executed a promissory note in favor
of the plaintiff AmerkhanSabdula in the sum of One Million Pesos
(P1, 000,000.00) to be fully paid on or before November 5, 2014
plus an interest of Three Percent (3%) every month, commencing
from the month of February 2015 until fully paid and Five Percent
(5%) penalty every month on the total amount due and
demandable until fully paid.
5. That a photocopy of the said promissory note is hereto attached as
ANNEX “A” and made an integral part hereof.
6. That defendant was able to pay only the amount of Three Hundred
Thousand Pesos (P300, 000.00) from the principal and despite the
lapse of the period to pay the obligation, defendant failed to pay
her total obligations thereby entitling the plaintiff to be paid of the
unpaid principal in the addition to the agreed 3% per month by way
of interest.
7. That said loan now long overdue despite of repeated demands,
the defendant failed and refused to settle the same as evidenced
by the Demand Letter send by the plaintiff’s Counsel demanding
the defendant to pay the unpaid principal amount of Seven
Hundred Thousand Pesos (P700, 000.00) plus Twenty One
Thousand Pesos (P21, 000.00) representing the total unpaid
monthly interest and Seventy Thousand Pesos (P70, 000.00)
representing the penalty. A photocopy of which is hereto attached
as Annex “B” and made an integral part hereof.
8. That all succeeding demands made by the plaintiff were all met by
unyielding refusal by the defendant.
PRAYER
WHEREFORE, after hearing and trial, judgment is rendered in favor
of the plaintiff and against the defendant, ordering the latter the following
1. To pay the plaintiff the unpaid principal amount of Seven Hundred
Thousand Pesos (P700, 000.00) plus Twenty One Thousand
Pesos (P21, 000.00) representing the total unpaid monthly
interestand Seventy Thousand Pesos (P70, 000.00) representing
the penalty.
2. Attorney’s fees equivalent to Ten Percent (10%) of the total
amount claimed.
3. Costs of litigation.
4. Other just and equitable relief.
Zamboanga City, Philippines, January 19, 2015.
ATTY. NORBRYAN B. EDDING
Counsel for the Plaintiff
4A Macrohon Building
Campaner Street, Zamboanga City
PTR No. 141414, 01-14-10
IBP OR. No. 141414, 01-14-10
Roll No. 141414
MCLE Cert. No. 14141414
(062)955-0683/09177091484
jan.edding87@gmail.com
VERIFICATION AND CERTIFICATE
Republic of the Philippines )
City of Zamboanga ) S.S.
I, AMERKHAN SABDULA, Filipino, of legal age residing at Guiwan,
Zamboanga City, after being sworn to in accordance with law, deposes and
say:
1. That I am the Plaintiff in the above-entitled case;
2. The facts stated in the above complaint are true and correct to the
best of my knowledge, belief and authentic records;
3. I have not commenced any action or filed any claim involving the
same issues in any court, tribunal or quasi-judicial agency and, to
the best of my knowledge, no such other action or claim is pending
in them.
4. If I should learn that the same or similar action or claim has been
filed or is pending after its filing, I shall report that fact within five
(5) days from notice to the court or where the complaint or
initiatory pleading has been filed.
Zamboanga City, Philippines, January 19, 2015.
AMERKHAN SABDULA
Affiant
SUBSCRIBED and SWORN to before me, this 19
th
of January 2015 in
the city of Zamboanga, Philippines. Affiant exhibiting to me his Driver’s
License 1234567890 issued in Zamboanga City on September 12, 2014.
Doc No. ____
Page No. ____
Book No. ____
Series of 2015
ATTY. NORBRYAN B. EDDING

1. That I am the Plaintiff in the above-entitled case;

2. The facts stated in the above complaint are true and correct to the
best of my knowledge, belief and authentic records;
3. I have not commenced any action or filed any claim involving the
same issues in any court, tribunal or quasi-judicial agency and, to
the best of my knowledge, no such other action or claim is pending
in them.
4. If I should learn that the same or similar action or claim has been
filed or is pending after its filing, I shall report that fact within five
(5) days from notice to the court or where the complaint or
initiatory pleading has been filed.
Zamboanga City, Philippines, January 19, 2015.
AMERKHAN SABDULA
Affiant
SUBSCRIBED and SWORN to before me, this 19
th
of January 2015 in
the city of Zamboanga, Philippines. Affiant exhibiting to me his Driver’s
License 1234567890 issued in Zamboanga City on September 12, 2014.
Doc No. ____
Page No. ____
Book No. ____
Series of 2015
ATTY. NORBRYAN B. EDDING
Notary Public
Commission Serial No. 1414141414
Until December 31, 2015
PTR No. 141414, 01-14-10
IBP OR. No. 141414, 01-14-10
Roll No. 141414
MCLE Cert. No. 14141414
09177091484
jan.edding87@gmail.com

January 5, 2014
Zamboanga City

P1,000,000.00

FOR VALUE RECEIVED, I promise to pay without need of demand to the

order of AMERKHAN SABDULA, at his residence in Guiwan, Zamboanga City
Philippines, the principal amount of One Million Pesos (P1,000,000.00), Philippine
Currency, on or before November 5, 2014. In addition to the foregoing, I promise
to pay an interest rate of Three Percent (3%) every month, commencing from
February 5, 2014 until this note is fully paid.

In case of default of payment, I agree to pay a penalty equivalent to Five Percent

(5%) every month based on the total amount due and demandable until fully paid.
Should it become necessary to collect this note with the services of a lawyer, I
shall pay an amount equivalent to Ten Percent (10%) of the amount claimed in the
complaint as attorney’s fees, exclusive of costs of litigation and other expenses.
January 5, 2014 at Edding and Associates Law Office, Zamboanga City,
Philippines.
RALPH JOSEPH ZERNA

In case of default of payment, I agree to pay a penalty equivalent to Five Percent

(5%) every month based on the total amount due and demandable until fully paid.
Should it become necessary to collect this note with the services of a lawyer, I
shall pay an amount equivalent to Ten Percent (10%) of the amount claimed in the
complaint as attorney’s fees, exclusive of costs of litigation and other expenses.
January 5, 2014 at Edding and Associates Law Office, Zamboanga City,
Philippines.
RALPH JOSEPH ZERNA
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Sample Complaint for Collection for a

Sum of Money
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(COLLECTION
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House and Lot Deed of Absolute Sale

April 1, 2017April 1, 2017 lettersa Legal Papers

DEED OF ABSOLUTE SALE

KNOW ALL MEN BY THESE PRESENTS:

This DEED OF ABSOLUTE SALE is made, executed and entered into by:
ZORAYDA L. GONZALES, of legal age, married to JASON D. GONZALES, Filipino and with
residence and postal address at Alfonso, Cavite city hereinafter refer to as the SELLER.

-AND-

SHEILA MAE D. ENRIQUEZ of legal age, single, Filipino and with residence and postal address at
#143 San Jose Village, Cavite City, hereinafter refer to as the BUYER.

WITNESSETH;

Whereas, the SELLER is the registered owner of a house, located at Blk 3 Lot 7 Ethel Subdivision,
Cavite City and whereas, the BUYER has offered to buy and the SELLER has agreed to sell the
above mentioned property for the amount of Nine Hundred Thousand Pesos Only (P 900,000.00)
Philippine Currency;

NOW THEREFORE, for and in consideration of the sum of Nine Hundred Thousand Pesos Only (P
900,000.00) Philippine Currency, hand paid by the vendee to the vendor ,the SELLER DO
HEREBYSELL ,TRANSFER and CONVEY by way of Absolute Sale unto the said BUYER, his
heirs and assigns, the certain house, free from all liens and encumbrances of whatever nature
including real estate taxes as of the date of this sale.

The SELLER would defend the title and rights of the BUYER from any claims of whatever kind or
nature from third persons.

The SELLER shall be liable for payment of the Capital Gains Tax.
The BUYER shall be liable for payment of Documentary Stamp Tax, Transfer Tax, registration Fees
and other incidental expenses related to the transfer of the title to the name of the BUYER.

ZORAYDA L. GONZALES SHEILA MAE D. ENRIQUEZ

Seller Buyer
WITH MARITAL CONSENT:

JASON D. GONZALES
Name of Seller’s Spouse

SIGNED IN THE PRESENCE OF:

____________________ _____________________
ACKNOWLEDGMENT

Republic of the Philippines )

Mun. Of Cavite ) S.S

BEFORE ME, a Notary Public for and in the Municipality of CAVITE, personally appeared:
Name CTC Number Date /Place Issued
All known to me know to be the same persons who executed this foregoing instrument and hereby
acknowledged to me that the same is their free and voluntary act and deed. This instrument consisting of
two(2) pages, including this page on which this acknowledgment is written refers to a DEED OF ABSOLUTE
SALE of a parcel of land and has been signed by the parties and their witnesses and sealed with my notarial
seal.

IN WITNESS WHEREOF, I have hereunto set my hand on the date and place first above written.

Notary Public

Doc no..
Page no..
Book no..
Series of 2011..

house and lot deed of absolute sale sample deed of absolute sale

DEED OF ABSOLUTE SALE

KNOW ALL MEN BY THESE PRESENTS:
This Deed of Absolute Sale is made and executed by and between:
ALEXANDER LIBRE SANCHEZ, JR., of legal age, married, Filipino citizen,
and a resident of Solar Olutanga, Zamboanga del Sur, hereinafter referred to as the
VENDOR;
-in favor ofANA LIZA C. LOPEZ, of legal age, married, Filipino citizen, and a resident of
ZNAC Tampilisan, Zamboange del Norte, hereinafter referred to as the VENDEE.
W I T N E S S E T H:
That the vendor is the registered owner of a vehicle which is more
particularly described as follows:
Make/Type :
Isuzu Bighorn Wagon
Engine No. :
4JG2666778
Chassis No. :
UBS69GW-7104940
Plate No.
:
ABU-3302
C.R. No.
:
9716353-3 dated 05.14.2010
O.R. No.
:
656069120 dated 05.22.2015
MV File No. :
088600000027032
That for and in consideration of the sum of ONE HUNDRED TWENTY
THOUSAND (PHP 120,000.00) Philippine Currency, to him paid in hand, and
receipt thereof is hereby acknowledged to her full satisfaction, by the vendee to the
vendor, the vendor hereby SELLS, CEDES and CONVEYS in a manner that is absolute
the above-described motor vehicle in favor of the vendee, her heirs, successors in
interests, free from all liens and encumbrances. This sell is on “As is, where is”
basis.
IN WITNESS WHEREOF, the parties affixed their signatures on the 23 rd day of
March 2016 in the City of Cagayan de Oro, Philippines.

ALEXANDER L. SANCHEZ, JR
Vendor

ANA LIZA C. LOPEZ

Vendee

LTO DL No. J04.02.092390

Valid until July 13, 2016

PRC Lic No. 0000481

Valid until Sept 23, 2018

Signed in the presence of:

1.

2.
ACKNOWLEDGMENT

Republic of the Philippines)

City of Cagayan de Oro
) S.S.

BEFORE ME THIS 23rd day of March 2016 in the City of Cagayan de Oro,
personally appeared the above named persons and known to me to be the same
persons who executed the foregoing instrument, and they acknowledge to me that
the same is their free act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand, the day, year and place
above written.

ATTY. EDITH ABUT DOCDOCIL

Doc. N o.
Page N o.
B ook N o. XLI I
Se ri e s of 20 16

Notary Public until December 31, 2016

102 Salvosa Building, Capistrano-Luna Sts.
9000 Cagayan de Oro City
Notarial Commission 2015.028
Mobile No. 09.168.468.111
MCLE Compliance No.lV-000.7677 09.11.12
Roll of Attorneys No.56463
PTR No. 3053546A 1.7.2016 CDO
IBP No. 1011741 1.6.16 CDO
 DEED OF SALE OF MOTOR VEHICLE
 
 
KNOW ALL MEN BY THESE PRESENTS:
 
          That I, (Name of Seller), Filipino, of legal age, a resident of (Address of Seller), is
the lawful owner of a certain motor vehicle which is more particularly described as
follows: 
 
MAKE                   : MOTOR NO.                      :
SERIES                : SERIAL/CHASSIS NO.      :
TYPE OF BODY     : PLATE NO.                        :
YEAR MODEL        : FILE NO.                           :
  C.R. NO.                            :
 
           That for and in consideration of the sum of Amount in Words (P000.000.00)
PESOS, Philippine Currency, receipt whereof is hereby acknowledged to my entire
satisfaction, I hereby sell, transfer and convey by way of Absolute Sale unto (Name of
Buyer), Filipino, of legal age, and resident of (Address of Buyer), the above described
motor vehicle, free from all liens and encumbrances.
 
          IN WITNESS WHEREOF, we have hereunto affixed our hands this____ day of
_______________ at ________________.
 
 
 
(Name of Buyer)                              (Name of Seller)
Vendee                                              Vendor
 
Signed in the presence of:
 
 
_____________________________                 ______________________________
 
ACKNOWLEDGEMENT
 
Republic of the Philippines )
                                        ) S.S
 
BEFORE ME, personally appeared:
 
              Name                              CTC Number            Date/Place Issued
 
             (Name of Seller)                       10000000              Jan 01, __ / Angeles City
     (Name of Buyer)                       10000000              Jan 04, __ / Manila
 
Known to me and to me known to be the same persons who executed the foregoing
instrument and acknowledged to me that the same is their free and voluntary act and
deed.
 
WITNESS MY HAND AND SEAL, on the date and place first above written.
                                                                  
                                                                                     Notary Public
 
Doc. No.______;
Page No. ______;
Book No.______;
Series of 20___.

REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT NATIONAL CAPITAL JUDICIAL REGION PASIG CITY, BRANCH 167

CHRISTOPHER G. BORJA, Plaintiff,

Vs. CIVIL CASE NO. 70883-PSG

BAN GOZA, INC. ET. AL. DefendANTSOPPOSITION TO MOTION TO DISMISS
PLAINTIFF, through Counsel, states:

1. On October 2, 2006, defendants through Counsel filed a Motion to

Dismiss based on the following grounds:
a. The Court has no jurisdiction over the persons of the defendants,
there being improper service of summons;
b. The complaint does not state a cause of action.
2. Upon a thorough review of defendants’ averments, plaintiff respectfully
submits that said Motion to Dismiss is bereft of merit.

II. Discussion A. Lack of Jurisdiction over the persons of the defendants

3. Defendants anchor their first ground on Section 1(a) of Rule 16 of the
Revised Rules of Civil Procedure, and contend that this Honorable Court
has no jurisdiction over them, as the summons were improperly served.

4. It appears that defendants are not cognizant of Rule 15, Section 20 of

said Rules which state that:
The defendant’s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion
to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a
voluntary appearance. 5. In the case of the Navale v. CA1, the Supreme Court, quoting Carballo v.
Encamacion, 49 O.G. 1383, held that, “Any form of appearance in court
by the defendant, his authorized agent or attorney, is equivalent to
service except where such appearance is precisely to object to the
jurisdiction of the court over his person.”
6. Attention is called to the fact that counsel for defendants filed a “Formal
Entry of Appearance and Motion for Extension to File Pleading” on
September 11, 2006. There is no indication whatsoever that such
pleading contained an “ad cautelam” reservation. Said entry and motion
have been entered into the records of the court and were duly acted
upon in an Order dated September 11, 2006.
7. Aside from that, on October 13, 2006, or after they filed their Motion to
Dismiss on the basis of lack of jurisdiction, defendants filed a
Manifestation and Motion, also without appending the phrase “ad
cautelam.”
8. Plaintiff respectfully submits that by making such motions, defendants
are deemed to have voluntarily submitted to the jurisdiction of the court,
thereby waiving their right to invoke the defense improper service of
summons.
9. To cite the ruling in La Naval Drug Corp. v. CA2 When a defendant
voluntarily appears, he is deemed to have submitted himself to the
jurisdiction of the court. If he so wishes not to waive this defense, he must do so seasonably by motion for the purpose
of objecting to the
jurisdiction of the court; otherwise, he shall be deemed to have
submitted himself to that jurisdiction.”
10. Moreover, plaintiffs are in clear bad faith when they allege that
“Ground Floor, Metrowalk Commercial Complex, Meralco Avenue,
Ortigas Center, Pasig City” is not their office or regular place of
business. That is the registered business address of the corporation, as
well as the address given by them to their clientele and callers. It is but
reasonable to presume that such is the “place of business” contemplated
in the Rules. To allow them to deny their own representations and to
demand that the sheriff inquire further would be to absurdly burden
this Honorable Court.
11. Defendants also suggest that Lendley Bastilaon is a “mere
management trainee who is obviously not a person in charge.” The
Sheriff’s Return dated August 15, 2006, which is part of the records of
this case discloses that when the sheriff left the summons with her, she
made a phone call to Jasper Chua, one of the incorporators, and after
which, proceeded to receive the summons.
12. Defendants are now estopped from denying the validity of
Bastilaon’s receipt or her competence, particularly since the Rules of
Court allows summons upon individuals to be served by leaving a copy
with “some competent person in charge.” It does not prohibit a
management trainee from receiving the summons.
13. The Supreme Court has held that a presumption exists that a
sheriff has regularly performed his official duty.3 To overcome the
presumption arising from the sheriff’s certificate, the evidence must be clear and convincing4. Defendants’ self-serving
averments do not meet
this threshold. B. No Cause of Action
14. Defendants allege that a cause of action must appear from the face
of the complaint and that on this score, the complaint is wanting as
“there is no law, rule, or a generally accepted principle of international
law which prohibits or outlaws the imposition and implementation of a
dress code.”
15. Defendants’ misapprehension of the plaintiff’s case is manifest.
Plaintiff’s cause of action is based on the Articles on Human Relations of
the Civil Code, specifically Articles 19, 20, 21, 26 and 43 – duly
captioned in Plaintiff’s complaint. As the complaint should only contain
ultimate facts5 and provisions of law are only necessary if a “defense
relied on is based on law”6, plaintiff no longer lifted the wordings of the
said Articles.
16. In the cases cited by the defendants themselves, the Supreme
Court held that “to determine the sufficiency of a cause of action on a
motion to dismiss, only the facts alleged on the complaint must be
considered.”7 This is known as the “four-corner rule” – wherein scrutiny
as to cause of action for purposes of filing a Rule 16 Section 1(g) Motion
to Dismiss is limited to the four corners of the complaint.
17. In the complaint of plaintiff, the following are just some of the
allegations that were made:
a. That plaintiff was humiliated by the brazenly discriminating
manner of defendant Tintin Aguilar; b. That plaintiff was prohibited from entering the premises by the
defendants on the basis of his cross-dressing and that such
prohibition is discriminatory and an abuse of right;
c. That as a result of the incident and defendants’ conduct, plaintiff
suffered from mental anguish, sleepless nights, and anxiety
attacks.
18. Whether or not these averments are true should be determined
only after a full-blown trial. Plaintiff submits that he has alleged facts
sufficient to give rise to a cause of action under the articles on Human
Relations.
19. While indeed the rest of defendants’ contentions should properly
be ventilated after a full-blown trial, so galling are some of these
contentions and misrepresentations that they must be responded to at
the first instance.
20. Defendants allege that “there is no law, rule or a generally accepted
principle of international law which exempts homosexuals from the
application of a validly and legally imposed dress code, such that
violation of such an exemption would amount to illegal discrimination
and would entitle them to damages.”
21. Defendants comprehension of the issue at hand is severely
wanting. While indeed there are no laws or rules prohibiting dress
codes, it cannot be gainsaid that there are laws prohibiting
discrimination on the basis of gender identity. Hence, when a particular
dress code runs afoul of anti-discrimination laws, then it is susceptible
to inquiry and judicial scrutiny. To say that the dress code is “validly
and legally” imposed is therefore a conclusion of law that should be
reached only after a trial on the merits. 22. It was also stated in their Motion to Dismiss that “plaintiff himself
admits… that private establishments like Aruba Bar and Restaurant do
have the right to impose a dress code” and argued that this statement is
exculpatory. Verily, defendants must be taken to task for this
misrepresentation. The complete statement in plaintiff’s complaint is:
“Indeed, while private establishments do have the right to impose a
dress code, it may not, in the guise of implementing such a dress code,
discriminate against individuals on the basis of his or her personal
condition, i.e., sexual orientation.”
23. Yet another misrepresentation of the defendants is that plaintiff
allegedly admitted that he was told by defendant Tintin Aguilar “in a
nice way.” No such admission was made. The phrase was a direct
quotation from defendant Aguilar who told plaintiff “I’m saying it in a
nice way.” In fact, the line in the complaint immediately preceding that
quotation was “I was humiliated by Aguilar’s cold tone of voice and
brazenly discriminating manner, so I told her that she had no right to
drag me out of the establishment.” In another error, defendants also
noted that paragraph 3 of the Complaint states that defendant
incorporators are not the employer of defendant Aguilar. Perhaps a more
careful rereading by the defendants is in order, as the Complaint
categorically alleged in that very same paragraph that defendant
incorporators ARE the employers of defendant Aguilar.
24. Defendants furthermore state:
Plaintiff likewise failed to make any specific allegation that defendants have adopted a dress code solely for the purpose
of injuring or prejudicing another, or homosexuals for that matter. He likewise failed to make any specific allegation that
homosexuals are being discriminated against at Aruba Bar and Restaurant as a matter of policy, regardless of how they
are dressed.

7
25. Defendants miss the point entirely. While not all homosexuals are
cross-dressers, cross-dressing is undeniably a form of articulation of
gender identity prevalent among Filipino homosexuals. In an academic
paper presented at the University of the Philippines in 1990, an
anthropologist noted that “the term bakla has always meant a cross
dressing, effeminate man.”8
26. Another Filipino gender studies expert wrote:
In anthropological literature, the term most commonly used in referring to the kind of cross-dressing traditional non-
Western societies observe is “gendercrossing.”… Gender-crossing therefore signifies not merely a theatrical but more
importantly a kind of “ontological” transformation: although characterized by transvetism, it is not reducible to it
inasmuch as it also implies an almost complete “crossing over” of socially enforced gender roles.9

27. But the assertion that defendants are not discriminating against
homosexuals, but only against cross-dressers, is not only culturally
insensitive and simplistic, it is also potentially dangerous.
28. To permit defendants’ contentions would be to create a policy
environment wherein homosexuals are accepted -- but only if they
conform to the arbitrarily-established social standards, only if they do
not inconvenience, only if their behavior does not ruffle the sensibilities
of the greater heterosexual population. That these standards appear to
be unjustified and unexplained appears to be of no import. Defendants
appear to suggest that they are there, and compliance is mandatory if
one does not wish to incur censure or, in this case, be barred from
restaurants.
29. Defendants wish to justify their prohibition on cross-dressing by
saying that they are merely trying to protect female customers wishing
to use the restroom. Such statement is speculative and conjectural. Weighed against the greater danger of
discriminating against a class of
people traditionally considered marginalized, where injury is certain and
clear, plaintiff submits that defendants’ conjectures should not be made
to stand.
30. Defendants argue that “the true essence of democracy requires
that such a dress code be implemented and applied to all persons,
regardless of what one’s race, status, sex or sexual preference may be.”
Plaintiff respectfully submit, as a final point, that the true essence of
democracy is anchored on pluralism and diversity, the accommodation
of divergent voices, and the aspiration of a world where everyone is truly
equal and truly free.

PRAYER
WHEREFORE, it is respectfully prayed that defendants’ Motion to Dismiss
be denied and the case be set for trial. All other reliefs, just and equitable
under the premises, are likewise prayed for.

Quezon City for Pasig City. November 10, 2006.

By:

ROSSELYNN JAYE G. DE LA CRUZ Counsel for the Plaintiff 101 Matahimik St., Teacher’s Village, Quezon City.
Roll No. 52826 IBP O.R. No. 683323 5-8-06 Quezon City Chapter
Copy furnished:

ATTY. GEROME N. TUBIG Counsel for the Defendants Justo & Associates 203 Evekal Building 855 A. Arnaiz Avenue,
Legaspi Village, Makati City 1229

EXPLANATION:

Service and filing of this motion were done through registered mail with return card due to distance.

ROSSELYNN JAYE G. DE LA CRUZ

OPPOSITION TO MOTION TO DISMISS

PLAINTIFF, through Counsel, states:

1. On October 2, 2006, defendants through Counsel filed a Motion to

Dismiss based on the following grounds:
a. The Court has no jurisdiction over the persons of the defendants,
there being improper service of summons;
b. The complaint does not state a cause of action.
2. Upon a thorough review of defendants’ averments, plaintiff respectfully
submits that said Motion to Dismiss is bereft of merit.
ants.
SECOND DIVISION
ANTONIO CABADOR, G.R. No. 186001

Petitioner,

Present:

Ynares-Santiago, J.,*
- versus - Carpio Morales,**

Acting Chairperson,

Brion,

Del Castillo, and

Abad, JJ.

PEOPLE OF THE PHILIPPINES,

Respondent. Promulgated:

October 2, 2009

x ---------------------------------------------------------------------------------------- x

DECISION

ABAD, J.:

Before the Court is a petition for review on certiorari, assailing the Court of Appeals (CA) Decision of
August 4, 20081 and Resolution of October 28, 2008 2 in CA-G.R. SP 100431 that affirmed the August 31, 2006
Order3 of the Regional Trial Court (RTC) of Quezon City.

The facts are not disputed.

On June 23, 2000 the public prosecutor accused petitioner Antonio Cabador before the RTC of Quezon
City in Criminal Case Q-00-93291 of murdering, in conspiracy with others, Atty. Jun N. Valerio. 4 On February
13, 2006, after presenting only five witnesses over five years of intermittent trial, the RTC declared at an end
the prosecutions presentation of evidence and required the prosecution to make a written or formal offer of
its documentary evidence within 15 days from notice. 5 But the public prosecutor asked for three extensions
of time, the last of which was to end on July 28, 2006. Still, the prosecution did not make the required written
offer.

*
*
1
2
3
4
5
 On August 1, 2006 petitioner Cabador filed a motion to dismiss the case, 6 complaining of a turtle-paced
proceeding in the case since his arrest and detention in 2001 and invoking his right to a speedy trial. Further,
he claimed that in the circumstances, the trial court could not consider any evidence against him that had not
been formally offered. He also pointed out that the prosecution witnesses did not have knowledge of his
alleged part in the crime charged.

Unknown to petitioner Cabador, however, four days earlier or on July 28, 2006 the prosecution asked
the RTC for another extension of the period for its formal offer, which offer it eventually made on August 1,
2006, the day Cabador filed his motion to dismiss. 7

On August 31, 2006 the RTC issued an Order treating petitioner Cabadors August 1, 2006 motion to
dismiss as a demurrer to evidence. And, since he filed his motion without leave of court, the RTC declared
him to have waived his right to present evidence in his defense. The trial court deemed the case submitted
for decision insofar as he was concerned. Cabador filed a motion for reconsideration of this Order but the
RTC denied it on February 19, 2007. 8 Cabador questioned the RTCs actions before the CA but on August 4,
2008 the latter denied his petition and affirmed the lower courts actions. 9 With the CAs denial of his motion
for reconsideration, on October 28, 2008 petitioner came to this Court via a petition for review on certiorari.

The issue in this case is whether or not petitioner Cabadors motion to dismiss before the trial court was
in fact a demurrer to evidence filed without leave of court, with the result that he effectively waived his right
to present evidence in his defense and submitted the case for decision insofar as he was concerned.

The trial proper in a criminal case usually has two stages: first, the prosecutions presentation of evidence
against the accused and, second, the accuseds presentation of evidence in his defense. If, after the
prosecution has presented its evidence, the same appears insufficient to support a conviction, the trial court
may at its own initiative or on motion of the accused dispense with the second stage and dismiss the criminal
action.10 There is no point for the trial court to hear the evidence of the accused in such a case since the
prosecution bears the burden of proving his guilt beyond reasonable doubt. The order of dismissal amounts
to an acquittal.

But because some have in the past used the demurrer in order to delay the proceedings in the case, the
remedy now carries a caveat. When the accused files a demurrer without leave of court, he shall be deemed
to have waived the right to present evidence and the case shall be considered submitted for judgment. 11 On
occasions, this presents a problem such as when, like the situation in this case, the accused files a motion to

6
7
8
9
10
11
dismiss that, to the RTC, had the appearance of a demurrer to evidence. Cabador insists that it is not one but
the CA, like the lower court, ruled that it is.

This Court held in Enojas, Jr. v. Commission on Elections 12 that, to determine whether the pleading filed is
a demurer to evidence or a motion to dismiss, the Court must consider (1) the allegations in it made in good
faith; (2) the stage of the proceeding at which it is filed; and (3) the primary objective of the party filing it.

Here, the pertinent portions of petitioner Cabadors motion to dismiss read as follows:

2. On November 9, 2001, the accused was arrested and subsequently brought to the
Quezon City jail through a commitment order dated November 21, 2001 where he had been
detained during the course of this case.

3. The accused was arraigned on January 8, 2002 and trial began soon after.

4. UP-OLA entered its appearance as counsel for the accused on January 20, 2005.

5. On February 10, 2006, the Honorable Court terminated the presentation of evidence
for the prosecution considering that the case has been going on for 5 years already and during
that period the prosecution has only presented 5 witnesses. Moreover, xxx there had been
numerous postponements due to failure of the prosecution to ensure the presence of its
witnesses.

6. In an order dated March 31, 2006, the Honorable court required the public
prosecutor to submit its formal offer of evidence within fifteen (15) days from receipt of such
order.

7. On April 17, 2006, the public prosecutor was again absent so the presentation of
evidence for the accused was reset to June 6, 2006.

8. During the same hearing, the Prosecution was again granted an additional fifteen
(15) days within which to file their formal offer of evidence.

9. On June 6, 2006, the public prosecutor again failed to appear and to file their
formal offer of evidence. In an order, the Honorable Court again extended to the prosecution
an additional fifteen (15) days from receipt of the order within which to file their formal offer
of evidence.

10. On June 28, 2006, the Honorable Court issued an order granting the
prosecution a thirty-day extension, or until July 28, 2006 within which to file their formal
offer of evidence since the public prosecutor was on leave.

11. Upon the expiration of the extension granted by the Honorable Court, the
prosecution failed to file their formal offer of evidence.

10. (Sic) Despite three (3) extensions, the prosecution failed to file formal offer of
evidence.

11. (Sic) Sec. 34, Rule 132 of the Rules of Court provides that the court shall
consider no evidence which has not been formally offered. A formal offer is necessary, since
judges are required to base their findings of fact and their judgment solely and strictly upon
the evidence offered by the parties at the trial (Ong vs. CA, GR No. 117103). Hence, without
any formal offer of evidence, this Honorable Court has no evidence to consider.

12
 12. The charge against the accused has no leg to stand on. The witnesses that had
been presented by the prosecution testified mainly on the occurrences on the night of the
incident and had no knowledge of any connection with or any participation by the accused in
the incident.

13. The hearings of the case have been delayed since 2001 through no fault of the
defense to the prejudice of the rights of the accused to a speedy trial, mandated by no less than
Art. III, Sec. 16 of the Constitution.

14. Since UP-OLA had entered its appearance in 2005, the case had been reset for
twelve (12) times, most of which are due to the fault or absence of the prosecution. For the
five year duration of the case, the prosecution still has not presented any evidence to prove the
guilt of the accused beyond reasonable doubt. Meanwhile, the accused has been unduly
stripped of this liberty for more than five (5) years upon an unsubstantiated charge.

15. The accused was injured and debilitated in the course of his arrest which
resulted in the amputation of his left leg. His movement is severely hampered and his living
conditions are less adequate. To subject him to further delays when there is no substance to the
charge against him would tantamount to injustice.13

It can be seen from the above that petitioner Cabador took pains to point out in paragraphs 2, 3, 5, 6, 7,
8, 9, 10, 11, 10 (sic), 13, 14, and 15 above how trial in the case had painfully dragged on for years. The gaps
between proceedings were long, with hearings often postponed because of the prosecutors absence. This
was further compounded, Cabador said, by the prosecutions repeated motions for extension of time to file its
formal offer and its failure to file it within such time. Cabador then invoked in paragraph 13 above his right to
speedy trial. But the RTC and the CA simply chose to ignore these extensive averments and altogether
treated Cabadors motion as a demurrer to evidence because of a few observations he made in paragraphs 11
(sic) and 12 regarding the inadequacy of the evidence against him.

In criminal cases, a motion to dismiss may be filed on the ground of denial of the accuseds right to
speedy trial.14 This denial is characterized by unreasonable, vexatious, and oppressive delays without fault of
the accused, or by unjustified postponements that unreasonably prolonged the trial. 15 This was the main
thrust of Cabadors motion to dismiss and he had the right to bring this up for a ruling by the trial court.

Cabador of course dropped a few lines in his motion to dismiss in paragraphs 11 (sic) and 12, saying that
the trial court has no evidence to consider, the charge has no leg to stand on, and that the witnesses x x x had
no knowledge of any connection with or any participation by the accused in the incident. But these were
mere conclusions, highlighting what five years of trial had accomplished.

The fact is that Cabador did not even bother to do what is so fundamental in any demurrer. He did not state
what evidence the prosecution had presented against him to show in what respects such evidence failed to
meet the elements of the crime charged. His so-called demurrer did not touch on any particular testimony of
even one witness. He cited no documentary exhibit. Indeed, he could not because, he did not know that the

13
14
15
prosecution finally made its formal offer of exhibits on the same date he filed his motion to dismiss. 16 To say
that Cabador filed a demurrer to evidence is equivalent to the proverbial blind man, touching the side of an
elephant, and exclaiming that he had touched a wall.

Besides, a demurrer to evidence assumes that the prosecution has already rested its case. Section 23,
Rule 119 of the Revised Rules of Criminal Procedure, reads:

Demurrer to evidence. After the prosecution rests its case, the court may dismiss the
action on the ground of insufficiency of evidence (1) on its own initiative after giving the
prosecution the opportunity to be heard or (2) upon demurrer to the evidence filed by the
accused with or without leave of court. (Emphasis supplied)

Here, after the prosecution filed its formal offer of exhibits on August 1, 2006, the same day Cabador
filed his motion to dismiss, the trial court still needed to give him an opportunity to object to the admission
of those exhibits. It also needed to rule on the formal offer. And only after such a ruling could the prosecution
be deemed to have rested its case. Since Cabador filed his motion to dismiss before he could object to the
prosecutions formal offer, before the trial court could act on the offer, and before the prosecution could rest
its case, it could not be said that he had intended his motion to dismiss to serve as a demurrer to evidence.

In sum, tested against the criteria laid down in Enojas, the Court finds that petitioner Cabador filed a
motion to dismiss on the ground of violation of his right to speedy trial, not a demurrer to evidence. He
cannot be declared to have waived his right to present evidence in his defense.

On a final note, a demurrer to evidence shortens the proceedings in criminal cases.  Caution must,
however, be exercised17 in view of its pernicious consequence on the right of the accused to present evidence
in his defense, the seriousness of the crime charged, and the gravity of the penalty involved.

WHEREFORE, the petition is GRANTED, the August 4, 2008 Decision and the October 28, 2008 Resolution
of the Court of Appeals in CA-G.R. SP 100431 are REVERSED and SET ASIDE, and the August 31, 2006 Order of
the Regional Trial Court of Quezon City, Branch 81 is NULLIFIED. The latter court is DIRECTED to resolve
petitioner Antonio Cabadors motion to dismiss based on the circumstances surrounding the trial in the case.

SO ORDERED.

ROBERTO A. ABAD

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO

16
17
 Associate Justice

CONCHITA CARPIO MORALES ARTURO D. BRION

Associate Justice Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice

ATTESTATION

I attest that the conclusions in the above decision were reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

CONCHITA CARPIO MORALES

Associate Justice

Acting Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Acting Division Chairpersons Attestation, it
is hereby certified that the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Courts Division.

REYNATO S. PUNO

Chief Justice

REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT NATIONAL CAPITAL REGION PASIG CITY, BRANCH
167

CHRISTOPHER G. BORJA, Plaintiff,

vs. CIVIL CASE NO. 70883-PSG

BAN GOZA, INC., ET. AL. Defendants.

MOTION TO DISMISS

COME NOW, DEFENDANTS, by counsel and unto this Honorable Court,

most respectfully move for the dismissal of the above-captioned case upon the
following arguments:

I. GROUNDS

A. THIS HONORABLE COURT HAS NO JURISDICTION OVER THE PERSONS OF THE DEFENDANTS.

B. THIS COMPLAINT DOES NOT STATE A CAUSE OF ACTION

II. DISCUSSION

SUMMONS WAS NOT SERVED UPON DEFENDANT BAN GOZA CORPORATION AS MANDATED BY THE RULES.
HENCE, THIS HONORABLE COURT HAS NO JURISDICTION OVER ITS PERSON

2.1. Rule 14 of the Rules of Court provides the different modes by which
service of summons may be made on a particular defendant. Such modes must be
complied with because the manner in which service of summons should be effected is
jurisdictional in character and its proper observance is what dictates the court’s
ability to take cognizance of the litigation before it.
2.2. Where a defendant is a private juridical entity like defendant Ban Goza
Corporation, Section 11, Rule 14 of the Rules of Court provides that service of
summons may be made either on the president, managing partner, general manager,
corporate secretary, treasurer or in house counsel. Said provision thus states:
“Sec. 11. Service upon domestic private juridical entity. – When the defendant is a corporation, partnership
or association organized under the laws of the Philippines with a juridical personality, service may be made
on the president, managing partner, general manager, corporate secretary, treasurer or inhouse counsel.
2.3. In Villarosa vs. Benito1, it was held that service of summons on a
corporation is exclusive to persons specified in the above-quoted provision of the
Rules of Court. Thus, the Supreme Court ruled in said case:
“The designation of persons or officers who are authorized to accept summons for a domestic corporation or
partnership is now limited and more clearly specified in Section 11, Rule 14 of the 1997 Rules of Civil
Procedure. The rule now states ‘general manager’ instead of only manager; ‘corporate secretary’ instead of
‘secretary’; and treasurer instead of ‘cashier’. The phrase ‘agent, or any of its directors’ is now
conspicuously deleted in the new rule. xxx Retired Justice Oscar Herrera, who is also a consultant of the
Rules of Court Revision Committee, stated that ‘(T)he rule must be STRICTLY observed. Service must be made
to one named in (the) statue…xxx

And in the case of Solar Team Entertainment, Inc. vs. Hon. Helen Bautista Ricafort, et. al. the Court succinctly
clarified that, FOR THE GUIDANCE OF THE BENCH AND BAR, ‘STRICTEST’ COMPLIANCE

WITH SECTION 11 OF THE RULE 14 OF THE 1997 RULES OF CIVIL PROCEDURE (ON PRIORITIES IN MODES OF
SERVICE AND FILING) IS MANDATED AND THE COURT CANNOT RULE OTHERWISE, lest we allow circumvention
of the innovation by the 1997 Rule in order to obviate delay in the administration of justice” (Emphasis
supplied)

2.4 In the case at bar, there is no showing that summons was served either

on defendant Ban Goza Corporation’s president, managing partner, general manager,

corporate secretary, treasurer, or in-house counsel, or that, at least, efforts were made

to serve the summons upon said persons.

2.5 There being no service of summons upon defendant Ban Goza

Corporation in accordance with the requirement of the rules, it follows that this

Honorable Court has not acquired jurisdiction over said defendant’s person.

NEITHER WERE SUMMONSES SERVED UPON THE INDIVIDUAL DEFENDANTS IN ACCORDNACE WITH THE MANDATE OF
THE RULES. HENCE, THIS HONORABLE COURT HAS ALSO NO JURISDICTION OVER THEIR PERSONS

2.6 Where the defendant is an individual, Section 6 and 7, Rule 14 of the

Rules of Court specifically provides the ordinary modes in which service of summons
may be made, thus:
“Section 6. Service in person on defendant. – Whenever practicable, the summons shall be served by handing a copy
thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.

“Section 7. Substituted Service. – If, for justifiable causes, the defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendants
residence with some person of suitable age

and discretion then residing therein, or (b) by leaving copies at defendant’s office or regular place of
business with some competent person in charge thereof.”

2.7 As may be gleaned from the foregoing, the general rule is that

summons must be served to the defendant in person. It is only when the defendant

cannot be served personally within a reasonable time and for justifiable reasons that substituted service
may be made2. Impossiblity of prompt service should also be

shown state the efforts made to find the defendant personally and the fact that such efforts failed.3

2.8. Strict compliance with the requirements of substituted service is required4. Under the controlling
decisions, the statutory requirements of substituted

service must be followed strictly, faithfully and fully, and any substituted service

other than by the statute is considered ineffective. This is necessary because

substituted service is in derogation of the usual method of service; it is a method

extraordinary in character; and hence, may be used only as prescribed and in the circumstances authorized
in the statute.5

2.9. Given the foregoing principles, no less than the Supreme Court held in United Coconut Planters Bank
vs. Ongpin6 that jurisdiction over the person of the

defendant cannot be acquired even if he knows of the case against him unless he is

validly served with summons. 2.10. In BPI vs. Spouses Evangelista, et. al.7, the High Tribunal emphasized

the requirement of strict compliance with the modes of service of summons, thus:

“Petitioner further argues that ruling against the RTC’s acquisition of jurisdiction may be putting more premium on
technical rules of procedure rather than on substantive justice. While it may be true that the provision of the Rules of
Court should be applied with substantial justice as the paramount end, their clear tenor and the supporting
jurisprudence cannot simply be disregarded. The Rules were painstakingly conceived in order to guarantee the orderly
dispensation of justice. Unjustifiably relegating them to the periphery by arguing that their imposition would be in
contravention of justice would smack of inadvertence, neglnegligence or even malice.”
2.11. In the case at bar, summonses were attempted to be served only at one
place – Aruba Bar and Restaurant, Ground Floor, Metrowalk Commercial Complex,
Meralco Avenue, Ortigas, Center, Pasig City. This place being a “bar and restaurant”
is obviously not the residence or office or regular place of business of the defendants.
Thus, it cannot be reasonably expected that summonses may be personally served
upon them at said place. On this score alone, it may already be said that there were
no valid attempts to serve the summonses upon the defendants in person.
2.12. Assuming for the sake of argument however that substituted service of
summons may be resorted to, the service of the summonses upon the individual
defendants was still not proper because said summonses were not served at their
respective residences of offices or regular place of business. Moreover, the person
who signed the summons, Lendley Bastilaon, is a mere management trainee who is
obviously not a person in charge at Aruba Bar and Restaurant.
2.13. Thus, this Honorable Court did not also acquire jurisdiction over the persons of the individual defendants.

THE COMPLAINT DOES NOT STATE A CAUSE OF ACTION.

2.14. Every ordinary civil action must be based on a cause of action8. As

defined by the rules, a cause of action is the act or omission by which a party violates a right of another9. It is the delict
or wrongful act or omission committed by the defendant in violation of the primary right of the plaintiff.10
2.15. To be sufficient, a cause of action must appear from the face of the complaint11. In the case at bar, defendants
respectfully submit that the complaint is
wanting on this particular matter.
2.16. First. There is no law, rule or a generally accepted principle of
international law which prohibits or outlaws the imposition and implementation of a
dress code. Plaintiff himself admits in paragraph 18 of his complaint that private
establishments like Aruba Bar and Restaurant do have the right to impose a dress
code. Verily, this admission is exculpatory and on this score alone, the case ought to
be dismissed.
2.17. Second. There is no law, rule or a generally accepted principle of
international law which exempts homosexuals from the application of a validly and
legally imposed dress code, such that violation of such an exemption would amount
to illegal discrimination and would entitle them to damages. On the contrary, the
true essence of democracy requires that such a dress code be implemented and
applied to all persons, regardless of what one’s race, status, sex or sexual preference
may be. Such an implementation is by no means, and has never been regarded as
illegal discrimination.
2.17.1. Even on courts of law, a dress code is imposed and
implemented on all lawyers regardless of one’s race, status, sex or
sexual preference. If a male lawyer for instance appears in a court room dressed in female attire, the implementation of
the dress code as against
him in case he happens to be a homosexual cannot certainly be argued as
an act of illegal discrimination.
2.17.1. It must be noted that even under the Family Code of the
Philippines, Articles 2 and 5 thereof allow a marriage only between a
male and a female. As a matter of fact, Articles 45(3) and 55(6) of the
same law even provide that lesbianism and homosexuality are grounds
for annulment and legal separation, respectively. Notwithstanding this
apparent discrimination under the law, this has never been regarded in
reality and in law as such. The deeper and more profound reason
prohibiting same-sex marriages is based on the impossibility of
reproduction rather than on invidious discrimination on account of sex or sexual preference12.
2.17.3. It must be remembered that Aruba bar and Restaurant is a
privately owned establishment providing leisure or entertainment
services. Its patronization is a privilege and NOT a right of plaintiff.
Aruba Bar and Restaurant’s dress code being legal, plaintiff’s right to
enter said establishment is therefore subordinate to said establishment’s
right to impose a dress code. 2.18. Third. Plaintiff failed to specifically allege any act on the part of the
defendants which constitutes an abuse of right or one which is contrary to law,
morals, good customs, public order or public policy. A careful review of the ultimate
facts alleged by the plaintiff, even assuming them to be true for the sake of argument, cannot make out such a case.
Even plaintiff himself admits in paragraph 17 of his
complaint that there was a fair warning posted at the entrance of Aruba Bar and
Restaurant which states that “[m]anagement reserves the right to refuse entry to those
inappropriately dressed.” While plaintiff was able to enter Aruba Bar and Restaurant,
it does not follow that the dress code may no longer be imposed if plaintiff was later
on found to have violated the same and, as he admitted in paragraph 7 of the
complaint, after he entered the female comfort room. Nonetheless, as he himself
likewise admitted in paragraph 10 of the complaint, plaintiff was informed of such
dress code by defendant Aguilar in a “nice way.” This negates any abuse of right or
any act which is contrary to law, morals, goof customs, public order, or public policy.
2.19. Fourth. Plaintiff likewise failed to make any specific allegation that
defendants have adopted a dress code solely for the purpose of injuring or prejudicing
another, or homosexuals for that matter. He likewise failed to make any specific
allegation that homosexuals are being discriminated against at Aruba Bar and
Restaurant as a matter of policy, regardless of how they are dressed. A careful review
of the ultimate facts alleged by the plaintiff, even assuming them to be true for the
sake of argument, likewise failed to make out such a case. On the contrary, ALL
PERSONS, REGARDLESS OF RACE, STATUS, SEX OR SEXUAL PREFERENCE ARE INDISCRIMINATELY WELCOME to enter
Aruba Bar and Restaurant, including the
plaintiff. But, as plaintiff admits, like any private establishment, Aruba Bar and
Restaurant does have the right to impose rules within the establishment such as the
imposition of a dress code. It is important to note that plaintiff is NOT being
prevented by Aruba Bar and Restaurant’s management from being a homosexual. He
is not even prevented from patronizing Aruba Bar and Restaurant, he is merely
required to comply with the dress code should he wish to patronize the
9
establishment.
2.19.1. Such dress code is not without any purpose. Certainly, it
is not to discriminate. In private enterprises like Aruba Bar and
Restaurant, one obvious purpose as regards the imposition of a dress
code is to avoid the happening of an event where a male customer
dresses as a female and enters the female comfort room, to the
detriment of female patrons who may be offended or made
uncomfortable. Defendants respectfully submit that for that reason and
to avoid confusion, even homosexuals for that matter should not enter
the female comfort room, as what plaintiff admitted having done in
this case (please see paragraph 7 of the complaint).
2.19.2. In view of the said purpose, said dress code is being
implemented at Aruba Bar and Restaurant regardless of the sexual preference of a person13. Verily, it must be noted
that plaintiff even
failed to allege that the dress code is being implemented at Aruba Bar
and Restaurant only against homosexuals, or that it was implemented
against him simply because he is homosexual.
2.20. Fifth. It bears stressing that the American cases cited by the plaintiff do
not find any relevance and application in this case for the following simple reasons:
(a) American cases do not constitute jurisprudence in this jurisdiction, much less the basis of causes of action. Even
granting arguendo that they were, the said cases are still not applicable in the case at bar. In the Price Waterhouse case,
the United States (U.S.) Supreme Court remanded the case to the lower court for further proceedings. The Schwenck
and Rosa cases were not even decided by the U.S. Supreme Court but by the U.S. Court of Appeals only, hence none of
said cases are final. (b) More importantly, said cases involved totally different
sets of facts and legal issues totally inapplicable to the case at bar. In the
Price Waterhouse case, there was no homosexual involved. The said
action involved a female employee allegedly discriminated against by
her employer relative to her employment on account of her sex and
behavior. In the Rosa case, the plaintiff therein sued a bank for
requiring him to dress in conformity with his appearance in
identification cards he submitted in relation to his loan application
therein. The trial court in fact granted the defendant bank’s Motion to
Dismiss, and on appeal by complainant, the Court of Appeals merely
remanded the case to the trial court for further proceedings. The
Schwenk case involved a sexual assault upon homosexual prison inmate
by a male prison guard, wherein the said homosexual sued various
institutional defendants for the said sexual assault. Clearly, non of said
cases are applicable to the case at bar.
 (c) Moreover, in all said cases, specific U.S. laws were
alleged to have been violated: Civil Rights Act of 1964, Gender
Motivated Violence Act and the Equal Credit Opportunity Act. In the
case at bar, there is no specific law that was violated. This Honorable
Court may take judicial notice of the fact that while there are already
Philippine laws that deal specifically with women and children, there
is as NO law which deals specifically with homosexuals. Proof of this is
the fact that said subject matter is still the subject of inquiry and

11
consideration in Congress.
2.21. Sixth. Article 2180 of the Civil Code does not find application against
defendant Ban Goza Corporation and individual defendants Jasper Chua, Melinda
Chua, Dominic Mendoza, Marionel Peralta and Lloyd Dizon.
While it is alleged under paragraph 2 of the complaint that defendant Ban
Goza Corporation is the owner of Aruba Bar and Restaurant, it is likewise alleged
under paragraph 3 that it is not the employer of defendant Aguilar.
While defendants Jasper Chua, Melinda Chua, Dominic Mendoza, Marionel
Peralta and Lloyd Dizon are alleged to be the employers of defendant Aguilar, under
paragraph 3, said defendants in their capacity as incorporators of defendant Ban Goza
Corporation, are not the owners of Aruba Bar and Restaurant.
2.22. Seventh. There is no factual allegation which would support plaintiff’s
claims for moral and exemplary damages, and attorney’s fees.
2.22.1. Under Article 2218 of the Civil Code, moral damages
are recoverable only in the following and analogous cases:
(1) A criminal offense resulting in physical injuries (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction,
rape or other lascivious acts; (4) Adultery and concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search;
(7) Libel, slander or any other form of defamation; (8) Malicious persecution; (9) Acts mentioned in Article 309; (10)
Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35

In the case at bar, the complaint is bereft of any allegation constitutive

of the foregoing cases.
2.22.2. Under Article 2234 of the Civil Code, plaintiff must
show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of
whether or not
exemplary damages should be awarded. As above-stated, the complaint
in the case at bar is bereft of any allegation constitutive of any of the
cases wherein moral damages are warranted.
2.22.3. Article 2208 of the Civil Code provides that in the
absence of stipulation, attorney’s fees cannot be recovered except:
(1) When exemplary damages are awarded; (2) When the defendant’s act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his interest; (3) In criminal cases of malicious persecution
against the plaintiff; (4) In case of a clearly unfounded civil action or proceeding against the plaintiff; (5) Where the
defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff’s plainly valid, just and demandable
claim; (6) In actions for legal support; (7) In actions for the recovery of wages of household helpers, laborers, and
skilled workers; (8) In actions for indemnity under the workmen’s compensation and employer’s liability laws; (9) In a
separate civil action to recover civil liability arising from a crime; (10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that attorney’s fees and expenses of litigation be
recovered.

In the case at bar, the complaint is bereft of any allegation

constitutive of the foregoing cases.
RELIEF
WHEREFORE, defendants respectfully pray that the herein complaint be
ordered dismissed on the ground of lack of jurisdiction over the persons of the
defendants and/or for failure of the plaintiff to state a cause of action.
Other Relief, just and equitable are also prayed for.

Motion to Dismiss Felony Criminal Mischief (example)

IN THE CIRCUIT COURT OF THE  NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA
CASE NO. 2013-CF-0000-A-O
STATE OF FLORIDA,
Plaintiff,

vs.

THE ACCUSED,
                     Defendant.
                            
MOTION TO REDUCE OR DISMISS FELONY CRIMINAL MISCHIEF

     The Accused in the above styled cause hereby moves this court for an order dismissing count 1 of the
information, the felony charge of criminal mischief above $1,000, pursuant to Fla.R.Crim.P. 3.190(c)(4) and as
grounds would show;
     There are no material disputed facts and those upon which the State would rely for conviction herein do
not constitute a prima facie case of guilt.
     The material undisputed facts are as follows;
1) On November 1, 2012, John Jone’s 2002 Chevrolet Avalanche was “keyed”, causing paint damage from the
driver’s side rear door all the way to the front fender.  
2) At the time of the offense, the Charging Affidavit estimated the damage to be $1,200, and the State
Attorney’s Office filed an information charging the Accused with felony criminal mischief, due to the damage
estimate being over $1,000.
3) The actual damage to the vehicle was less than $1,000.
4) According to the sworn deposition testimony of victim John Jones, said witness originally gave an estimate
of damage of $900, but then remembered “I would say probably I got a better deal than that ($900). I’d say I
probably paid 650 for it”. [Deposition, Jones, p. 8, line 4]
5) Jones was again asked for a range of value on the damage to his truck, “Q: So cap at 900, possibly as low as
650?” “A: yeah, yeah.”.  [Deposition, Jones, p. 8, line 7]
6) There is no written proof of the amount of damages, only the testimony of the truck owner John Jones.  
He swore to such by noting in his deposition that “at the end of the day, I don’t have any paperwork.  I
actually went back and looked”,  and repeating this fact later, stating “I don’t have like a receipt that says this
is what it is.”  [Deposition, Jones, p. 7, line 12, and p. 8, line 1]

Wherefore, the material undisputed facts do not constitute a prima facie case of guilt against the Accused.

                                     MEMORANDUM OF LAW

    The damage to John Jones' truck was less than $1,000, and thus this court should dismiss this charge,
thereby permitting the State to file an appropriate misdemeanor case in the County Court of this jurisdiction.
The purpose of 3.190(c)(4) motions are to cull the wheat from the chaff without wasting valuable court time.
The Fifth District Court of Appeal has stated: The function of a (c)(4) motion to dismiss is to ascertain whether
or not the facts which the State relies upon to constitute the crime charged, and on which it will offer
evidence to prove it, do, as a matter of law, establish a prima facie case of guilt of the accused. State v.
Upton, 392 So.2d 1013 (Fla. 5th DCA 1981) citing State v. Davis, 243 So.2d 587 (Fla.1971).   “The purpose of a
motion to dismiss is to allow a pretrial determination of the law of the case when the facts are not in
dispute”. State v. Pasko, 815 So. 2d 680, 681 (Fla. 2nd DCA 2002).  The “material facts” that predicate this
motion to dismiss are aimed only at the issue of proof regarding “damage in excess of $1,000”.  Issues
regarding who actually inflicted the damage upon the victim’s truck are not material to the defendant’s
request that a pretrial determination regarding whether or not the state’s facts--as a matter of law--establish
“damage above $1,000”.

The Accused is charged with felony criminal mischief under Florida Statute 806.13(1)(B)(3), and this statute
requires proof of the amount of damage.  It is worth noting that the second-degree misdemeanor criminal
mischief has no such proof requirement.  Our Supreme Court notes that “a plain reading of the criminal
mischief statute reveals that the amount of damage is an essential element of the crime of felony criminal
mischief."  Marrero v. State, 71 So.3d 881 (Fla. 2011).  The High Court further found that “we cannot agree
that the cost of motor vehicle body repair is so self-evident that a jury could simply use its life experience or
common sense to determine whether the $1,000 damage threshold was met.” Id. Citing Jackson v. State, 413
So.2d 112, at 114 (Fla. 2d DCA 1982).  

Our Florida Supreme Court makes it clear in Marrero that a “defendant can only be convicted of felony
criminal mischief if the damage in question is $1,000 or greater.  Absent evidence of the amount of damage,
the State has failed to prove an essential element of the crime: the amount of damage.”  Id at 890.  The rule
on felony criminal mischief is “that before a defendant can be convicted of felony criminal mischief, the State
must prove the amount of damage associated with the criminal conduct.” Id at 891.  In the Accused’s case,
the State can only prove a maximum amount of damage of $900, with the most likely estimate of damage to
be $650.  None of these damage amounts constitute a felony under Florida law.

A 3.190(c)(4) motion must be based upon sworn facts, and part of said sworn facts are attached to this
motion--in the form of the sworn testimony of victim John Jones.  Florida appellate courts have noted that
“[w]e see no impediment to using sworn deposition testimony to support a motion to dismiss.”  State v.
Davis, 890 So.2d 1242 (Fla. 4th DCA 2005).   Of course, a defendant need not personally provide a sworn
statement in support of a motion to dismiss.  This issue was addressed in State v. Betancourt, 616 So. 2d 82
(Fla. 3rd DCA 1993), with the state appealing the fact that Betancourt never personally provided a sworn
statement--the defendant’s father provided the sworn facts supporting the (c)(4) motion.  Even though the
state complained that a (c)(4) motion puts a burden upon the defendant to affirmatively admit the facts, the
court rejected this line of reasoning.  Florida Rule of Criminal Procedure 3.190(c)(4) only requires the motion
be sworn to by “a person with knowledge”. This person need not be the defendant.  Thus, a (c)(4) motion can
survive a traverse without ever having the defendant swear to any facts, as the rule only requires “a person
with knowledge”.   The 3rd DCA held that Betancourt’s (c)(4) motion was valid without the defendant
swearing to the facts which predicated the motion, as (c)(4) motions to dismiss do  “not require the affidavit
to be executed personally by the defendant.” Id. at 83.   

      Should the state chose to traverse this motion, the State's traverse must dispute "material" facts.  The 5th
DCA in State v. Hysell held that a traverse mandates the denial of a motion to dismiss only when it "creates a
dispute as to material evidentiary facts [emphasis in original]", and the 5th DCA upheld dismissal in Hysell
because the state's traverse merely "disputed the legal effect" of the facts.  569 So. 2d 866, 867 (Fla. 5th DCA
1990).   The 3rd DCA in State v. Nunez held that the state’s traverse was insufficient to survive the
defendant’s motion to dismiss, because “a traverse requires more than a did not, did so swearing match.”
881 So. 2d 658 (Fla. 3rd DCA 2004).   

The Defendant did not key the victim’s car, but the question of  whether or not the Defendant was the
person who “keyed” the victim’s car has no bearing on this motion--as this motion’s “material evidentiary
facts”  focus on whether or not the state’s proof of damages is legally sufficient to constitute “damage above
$1,000”.  Any Defendant language hedging on whether the defendant did or did not key the victim’s vehicle is
surplusage and can be disregarded. 

As a side note, should this Court grant the Defendant’s motion, Rule 3.190(e), entitled Effect of Sustaining a
Motion to Dismiss, specifically addresses an anticipated concern of the state that dismissal amounts to
“throwing the baby out with the bath water.”  Rule 3.190(e) states that the Accused may be “admitted to bail
for a reasonable specified time pending the filing of a new indictment or information”.  The Accused is
already out on bail, so this Court should continue such conditions of release pending this case’s transfer to an
appropriate County Court division.

For the foregoing reasons, the Accused requests this court to dismiss the charge against him.

Respectfully submitted this 18th day of April, 2012.

The Law Firm of John Guidry, P.A.

BY:  _____________________________
JOHN P. GUIDRY II, Esquire
Attorney for The Accused
320 N. Magnolia Ave. Suite B-1
Orlando, Florida 32801
Phone (407) 423-1117
Fax (407) 423-1118
Florida Bar Number 0990086

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by hand delivery to Office of the State
Attorney,  Office of the State Attorney, 415 North Orange Avenue, Orlando, Florida 32801 this 18th day of
April, 2012.

___________________________
John P. Guidry II

The above statements are true, and I am executing this motion voluntarily and of my own free will, without
coercion or undue pressure from anyone. The foregoing document was acknowledged before me this _____
day of ________, 2012, by _______________________ who has presented _____________ as identification
and who did take an oath.

__________________________         _________________________
Accused Notary Public

G.R. No. L-50378 September 30, 1982

FILINVEST CREDIT CORPORATION, petitioner, 

vs.
THE HONORABLE JUDGE BENJAMIN RELOVA (In his capacity as Presiding Judge of the Court of
First Instance of Manila, Branch XI) and ERNESTO SALAZAR, respondents.

Labaquis, Loyola & Angara Law Offices for petitioner.

Cecilio D. Ignacio for respondents.

GUERRERO, J.:

This is a special civil action for certiorari, with prayer for restraining order or preliminary injunction, filed by
petitioner Filinvest Credit Corporation seeking to annul the Orders issued by respondent Judge dated February
2, 1979 and April 4, 1979 in Civil Case No. 109900.

As shown by the records, the antecedents of the instant Petition are as follows:
On August 2, 1977, Filinvest Credit Corporation (hereinafter referred to as FILINVEST) filed a
complaint in the lower court against defendants Rallye Motor Co., Inc. (hereinafter referred to as
RALLYE) and Emesto Salazar for the collection of a sum of money with damages and preliminary
writ of attachment. From the allegations of the complaint, 1 it appears that in payment of a motor
vehicle described as: “One (1) Unit MAZDA DIESEL SCHOOL BUS, Model: E4100, Serial No.:
EXC43P-02356, Motor No.: Y-13676,” Salazar executed a promissory note dated May 5, 1977 in
favor of RALLYE for the amount of P99,828.00. To secure the note, Salazar also executed in favor
of RALLYE a deed of chattel mortgage over the above described motor vehicle. On May 7, 1977,
RALLYE, for valuable consideration, assigned all its rights, title and interest to the aforementioned
note and mortgage to FILINVEST. Thereafter, FILINVEST came to know that RALLYE had not
delivered the motor vehicle subject of the chattel mortgage to Salazar, “as the said vehicle (had)
been the subject of a sales agreement between the codefendants.” Salazar defaulted in complying
with the terms and conditions of the aforesaid promissory note and chattel mortgage. RALLYE, as
assignor who guaranteed the validity of the obligation, also failed and refused to pay FILINVEST
despite demand. According to FILINVEST, the defendants intentionally, fraudulently and with malice
concealed from it the fact that there was no vehicle delivered under the documents negotiated and
assigned to it, otherwise, it would not have accepted the negotiation and assignment of the rights
and interest covered by the promissory note and chattel mortgage. Praying for a writ of preliminary
attachment, FILINVEST submitted with its complaint the affidavit of one Gil Mananghaya, pertinent
portions of which read thus:

That he is the Collection Manager, Automotive Division of Filinvest Credit Corporation;

That in the performance of his duties, he came to know of the account of Ernesto Salazar, which is covered by
a Promissory Note and secured by a Chattel Mortgage, which documents together with all the rights and
interest thereto were assigned by Rallye Motor Co., Inc.;

That for failure to pay a stipulated installment, and the fact that the principal debtor, Ernesto Salazar, and the
assignor, Rallye Motor Co., Inc. concealed the fact that there was really no motor vehicle mortgaged under the
terms of the Promissory Note and the Chattel Mortgage, the entire amount of the obligation stated in the
Promissory Note becomes due and demandable, which Ernesto Salazar and Rallye Motor Co., Inc. failed and
refused to pay, so much so that a sufficient cause of action really exists for Filinvest Credit Corporation to
institute the corresponding complaint against said person and entity;

That the case is one of those mentioned in Section 1, Rule 57 of his Rules of Court, particularly an action
against parties who have been guilty of a fraud in contracting the debt or incurring the obligation upon which
the action is brought;

That there is no other sufficient security for the claim sought to be enforced by the action, and that the amount
due to the applicant Filinvest Credit Corporation is as much as the sum for which the order is granted above all
legal counterclaims;

That this affidavit is executed for the purpose of securing a writ of attachment from the court. 2

The specific provision adverted to in the above Affidavit is Section 1(d) of Rule 57 which includes “an action
against a party who has been guilty of fraud in contracting the debt or incurring the obligation upon which the
action is brought, or in concealing or disposing of the property for the taking, detention or conversion of which
the action is brought” as one of the cases in which a “plaintiff or any proper party may, at the commencement
of the action or at any time thereafter, have the property of the adverse party attached as security for the
satisfaction of any judgment that may be recovered.”

Judge Jorge R. Coquia (now Justice of the Court of Appeals), then presiding Judge of the lower court, granted
the prayer for a writ of attachment in an Order dated August 17, 1977 stating that:

Finding the complaint sufficient in form and substance, and in view of the sworn statement of Gil
Mananghaya, Collection Manager of the plaintiff that defendants have committed fraud in securing the
obligation and are now avoiding payment of the same, let a writ of attachment issue upon the plaintiff’s filing
of a bond in the sum of P97,000.00.
In the meantime, let summons issue on the defendants. 3

More than a year later, in an Urgent Motion dated December 11, 1978, 4 defendant Salazar prayed
that the writ of preliminary attachment issued ex parte and implemented solely against his property
be recalled and/or quashed. He argued that when he signed the promissory note and chattel
mortgage on May 5, 1977 in favor of RALLYE, FILINVEST was hot vet his creditor or obligee,
therefore, he could not be said to have committed fraud when he contracted the obligation on May 5,
1977. Salazar added that as the motor vehicle which was the object of the chattel mortgage and the
consideration for the promissory note had admittedly not been delivered to him by RALLYE, his
repudiation of the loan and mortgage is more justifiable.

FILINVEST filed an Opposition, but on February 2, 1979, the court a quo, this time presided over by herein
respondent Judge, ordered the dissolution and setting aside of the writ of preliminary attachment issued on
August 17, 1977 and the return to defendant Salazar of all his properties attached by the Sheriff by virtue of
the said writ. In this Order, respondent Judge explained that:

When the incident was called for hearing, the Court announced that, as a matter of procedure, when
a motion to quash a writ of preliminary attachment is filed, it is incumbent upon the plaintiff to prove
the truth of the allegations which were the basis for the issuance of said writ. In this hearing, counsel
for the plaintiff manifested that he was not going to present evidence in support of the allegation of
fraud. He maintained that it should be the defendant who should prove the truth of his allegation in
the motion to dissolve the said writ. The Court disagrees. 5

FILINVEST filed a Motion for Reconsideration of the above Order, and was subsequently allowed to adduce
evidence to prove that Salazar committed fraud as alleged in the affidavit of Gil Mananghaya earlier quoted.
This notwithstanding, respondent Judge denied the Motion in an Order dated April 4, 1979 reasoning thus:

The plaintiff’s evidence show that the defendant Rallye Motor assigned to the former defendant Salazar’s
promissory note and chattel mortgage by virtue of which plaintiff discounted the note. Defendant Salazar
refused to pay the plaintiff for the reason that Rallye Motor has not delivered to Salazar the motor vehicle
which he bought from Rallye. It is the position of plaintiff that defendant Salazar was in conspiracy with
Rallye Motor in defrauding plaintiff.

Ernesto Salazar, on his part complained that he was himself defrauded, because while he signed a promissory
note and chattel mortgage over the motor vehicle which he bought from Rallye Motor, Rallye Motor did not
deliver to him the personal property he bought; that the address and existence of Rallye Motor can no longer
be found.

While it is true that the plaintiff may have been defrauded in this transaction, it having paid Rallye
Motor the amount of the promissory note, there is no evidence that Ernesto Salazar had connived or
in any way conspired with Rallye Motor in the assignment of the promissory note to the plaintiff,
because of which the plaintiff paid Rallye Motor the amount of the promissory note. Defendant
Ernesto Salazar was himself a victim of fraud. Rallye Motor was the only party which committed it. 6

From the above order denying reconsideration and ordering the sheriff to return to Salazar the
personal property attached by virtue of the writ of preliminary attachment issued on August 17, 1977,
FILINVEST filed the instant Petition on April 19, 1979. On July 16, 1979, petitioner FILINVEST also
filed an Urgent Petition for Restraining Order 7 alleging, among others, that pending this certiorari
proceeding in this court, private respondent Salazar filed a Motion for Contempt of Court in the court
below directed against FILINVEST and four other persons allegedly for their failure to obey the
Order of respondent Judge dated April 4, 1979, which Order is the subject of this Petition. On July
23, 1979, this Court issued a temporary restraining order “enjoining respondent Judge or any person
or persons acting in his behalf from hearing private respondent’s motion for contempt in Civil Case
No. 109900, entitled, ‘Filinvest Credit Corporation, Plaintiff, versus The Rallye Motor Co., Inc., et al.,
Defendants’ of the Court of First Instance of Manila, Branch XI. ” 8

Petitioner FILINVEST in its MEMORANDUM contends that respondent Judge erred:

(1) In dissolving the writ of preliminary attachment already enforced by the Sheriff of Manila without
Salazar’s posting a counter-replevin bond as required by Rule 57, Section 12; and

(2) In finding that there was no fraud on the part of Salazar, despite evidence in abundance to show the fraud
perpetrated by Salazar at the very inception of the contract.

It is urged in petitioner’s first assignment of error that the writ of preliminary attachment having been validly
and properly issued by the lower court on August 17, 1977, the same may only be dissolved, quashed or
recalled by the posting of a counter-replevin bond under Section 12, Rule 57 of the Revised Rules of Court
which provides that:

Section 12. Discharge of Attachment upon, gluing counterbond.—At any time after an order of attachment has
been granted, the party whose property has been attached, or the person appearing on his behalf, may, upon
reasonable notice to the applicant, apply to the judge who granted the order, or to the judge of the court, in
which the action is pending, for an order discharging the attachment wholly or in part on the security given.
The judge shall, after hearing, order the discharge of the attachment if a cash deposit is made, or a counter-
bond executed to the attaching creditor is filed, on behalf of the adverse party, with the clerk or judge of the
court where the application is made, in an amount equal to the value of the property attached as determined by
the judge, to secure the payment of any judgment that the attaching creditor may recover in the action. …

Citing the above provision, petitioner contends that the court below should not have issued the Orders dated
February 2, 1979 and April 4, 1979 for failure of private respondent Salazar to make a cash deposit or to file a
counter-bond.

On the other hand, private respondent counters that the subject writ of preliminary attachment was improperly
or irregularly issued in the first place, in that it was issued ex parte without notice to him and without hearing.

We do not agree with the contention of private respondent. Nothing in the Rules of Court makes
notice and hearing indispensable and mandatory requisites for the issuance of a writ of attachment.
The statement in the case of Blue Green Waters, Inc. vs. Hon. Sundiam and Tan  9 cited by private
respondent, to the effect that the order of attachment issued without notice to therein petitioner Blue
Green Waters, Inc. and without giving it a chance to prove that it was not fraudulently disposing of its
properties is irregular, gives the wrong implication. As clarified in the separate opinion of Mr. Justice
Claudio Teehankee in the same cited case, 10 a writ of attachment may be issued ex parte. Sections
3 and 4, Rule 57, merely require that an applicant for an order of attachment file an affidavit and a
bond: the affidavit to be executed by the applicant himself or some other person who personally
knows the facts and to show that (1) there is a sufficient cause of action, (2) the case is one of those
mentioned in Section 1 of Rule 57, (3) there is no other sufficient security for the claim sought to be
enforced, and (4) the amount claimed in the action is as much as the sum for which the order is
granted above all legal counterclaims;and the bond to be “executed to the adverse party in an
amount fixed by the judge, not exceeding the applicant’s claim, conditioned that the latter will pay all
the costs which may be adjudged to the adverse party and all damages which he may sustain by
reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto.”

We agree, however, with private respondents contention that a writ of attachment may be discharged without
the necessity of filing the cash deposit or counter-bond required by Section 12, Rule 57, cited by petitioner.
The following provision of the same Rule allows it:

Sec. 13. Discharge of attachment for improper or irregular issuance.—The party whose property has been
attached may also, at any time either before or after the release of the attached property, or before any
attachment shall have been actually levied, upon reasonable notice to the attaching creditor, apply to the judge
who granted the order, or to the judge of the court in which the action is pending, for an order to discharge the
attachment on the ground that the same was improperly or irregularly issued. If the motion be made on
affidavits on the part of the party whose property has been attached, but not otherwise, the attaching creditor
may oppose the same by counter-affidavits or other evidence in addition to that on which the attachment was
made. After hearing, the judge shall order the discharge of the attachment if it appears that it was improperly
or irregularly issued and the defect is not cured forthwith.”(Emphasis supplied)
The foregoing provision grants an aggrieved party relief from baseless and unjustifiable attachments
procured, among others, upon false allegations, without having to file any cash deposit or counter-
bond. In the instant case the order of attachment was granted upon the allegation of petitioner, as
plaintiff in the court below, that private respondent RALLYE, the defendants, had committed “fraud in
contracting the debt or incurring the obligation upon which the action is brought,” covered by Section
i(d), Rule 57, earlier quoted. Subsequent to the issuance of the attachment order on August 17,
1977, private respondent filed in the lower court an “Urgent Motion for the Recall and Quashal of the
Writ of Preliminary Attachment on (his property)” dated December 11, 1978 11 precisely upon the
assertion that there was “absolutely no fraud on (his) part” in contracting the obligation sued upon by
petitioner. Private respondent was in effect claiming that petitioner’s allegation of fraud was false,
that hence there was no ground for attachment, and that therefore the attachment order was
“improperly or irregularly issued.” This Court was held that “(i)f the grounds upon which the
attachment was issued were not true …, the defendant has his remedy by immediately presenting a
motion for the dissolution of the same. 12 We find that private respondent’s abovementioned Urgent
Motion was filed under option 13, Rule 57.

The last sentence of the said provision, however, indicates that a hearing must be conducted by the
judge for the purpose of determining whether or not there reality was a defect in the issuance of the
attachment. The question is: At this hearing, on whom does the burden of proof lie? Under the
circumstances of the present case, We sustain the ruling of the court a quo in its questioned Order
dated February 2, 1979 that it should be the plaintiff (attaching creditor), who should prove his
allegation of fraud. This pronouncement finds support in the first sentence of Section 1, Rule 131,
which states that: “Each party must prove his own affirmative allegations.” The last part of the same
provision also provides that: “The burden of proof lies on the party who would be defeated if no
evidence were given on either side.” It must be brne in mind that in this jurisdiction, fraud is never
presumed. FRAUS EST IdIOS ET NON PRAESUMENDA. 13 Indeed, private transactions are
presumed to have been fair and regular. 14 Likewise, written contracts such as the documents
executed by the parties in the instant case, are presumed to have been entered into for a sufficient
consideration. 15

In a similar case of Villongco, et al., vs. Hon. Panlilio, et al., 16 a writ of preliminary attachment was
issued ex parte in a case for damages on the strength of the affidavit of therein petitioners to the
effect that therein respondents had concealed, removed or disposed of their properties, credits or
accounts collectible to defraud their creditors. Subsequently, the lower court dissolved the writ of
attachment. This was questioned in a certiorari proceeding wherein this Court held, inter alia, that:

The affidavit supporting the petition for the issuance of the preliminary attachment may have been sufficient
to justify the issuance of the preliminary writ, but it cannot be considered as proof of the allegations
contained in the affidavit. The reason is obvious. The allegations are mere conclusions of law, not statement
of facts. No acts of the defendants are ever mentioned in the affidavit to show or prove the supposed
concealment to defraud creditors. Said allegations are affirmative allegations, which plaintiffs had the
obligation to prove … 17

It appears from the records that both herein private parties did in fact adduce evidence to support their
respective claims. 18 Attached to the instant Petition as its Annex “H” 19 is a Memorandum filed by herein
petitioner FILINVEST in the court below on March 20, 1979. After private respondent filed his Comment to
the Petition, 20petitioner filed a Reply 21 ,attaching another copy of the aforesaid Memorandum as Annex
“A” 22 In this case on February 28, 1979 and March 1, 1979, the plaintiff (FILINVEST) presented in evidence
documentary exhibits “marked Exhibit A, A- I, B, B-1, B-2, B-3, B-4, C, C-1, D, E, F, G and G-1. The
Memorandum goes on to state that FILINVEST presented as its witness defendant Salazar himself who
testified that he signed Exhibits A, B, C, D, E and G; that he is a holder of a master’s degree in Business
Administration and is himself a very careful and prudent person; that he does not sign post-dated
documents; that he does not sign contracts which do not reflect the truth or which are irregular on their face,
that he intended to purchase a school bus from Rallye Motors Co., Inc. from whom he had already acquired
one unit; that he had been dealing with Abel Sahagun, manager of RALLYE, whom he had known for a long
time that he intended to purchase the school bus on installment basis so he applied for financing with the
FILINVEST; that he knew his application was approved; that with his experience as a business executive, he
knew that under a financing arrangement, upon approval of his application, when he signed Exhibits A, B, C,
D, E and G, the financing company (FILINVEST) would release the proceeds of the loan to RALLYE and that he
would be obligated to pay the installments to FILINVEST; that he signed Exhibits A, B and C simultaneously;
that it was his wife who was always transacting business with RALLYE and Abel Sahagun. 23

Without disputing the above summary of evidence, private respondent Salazar states in his Comment that
“the same evidence proferred by (petitioner’s) counsel was adopted by (private respondent) Ernesto Salazar
during the proceedings. 24

According to the court a quo in its assailed order of April 4, 1979, Emesto Salazar “was himself defrauded
because while he signed the promissory note and the chattel mortgage over the vehicle which he bought
from Rallye Motors, RALLYE did not deliver to him the personal property he bought.” And since no fraud was
committed by Salazar, the court accordingly ordered the sheriff to return to Salazar the properties attached
by virtue of the writ of preliminary attachment issued on August 17, 1977.

We do not agree. Considering the claim of respondent Salazar that Rallye Motors did not deliver the motor
vehicle to him, it follows that the Invoice, Exhibit “C”, for the motor vehicle and the Receipt, Exhibit “G”, for
its delivery and both signed by Salazar, Exhibits “C-1 ” and “G-1”, were fictitious. It also follows that the
Promissory Note, Exhibit “A”, to pay the price of the undelivered vehicle was without consideration and
therefore fake; the Chattel Mortgage, Exhibit “B”, over the non-existent vehicle was likewise a fraud; the
registration of the vehicle in the name of Salazar was a falsity and the assignment of the promissory note by
RALLYE with the conforme of respondent Salazar in favor of petitioner over the undelivered motor vehicle
was fraudulent and a falsification.

Respondent Salazar, knowing that no motor vehicle was delivered to him by RALLYE, executed and
committed all the above acts as shown the exhibits enumerated above. He agreed and consented to the
assignment by RALLYE of the fictitious promissory note and the fraudulent chattel mortgage, affixing his
signature thereto, in favor of petitioner FILINVEST who, in the ordinary course of business, relied on the
regularity and validity of the transaction. Respondent had previously applied for financing assistance from
petitioner FILINVEST as shown in Exhibits “E ” and “E-1 ” and his application was approved, thus he
negotiated for the acquisition of the motor vehicle in question from Rallye Motors. Since he claimed that the
motor vehicle was not delivered to him, then he was duty-bound to reveal that to FILINVEST, it being
material in inducing the latter to accept the assignment of the promissory note and the chattel mortgage.
More than that, good faith as well as commercial usages or customs require the disclosure of facts and
circumstances which go into the very object and consideration of the contractual obligation. We rule that the
failure of respondent Salazar to disclose the material fact of non-delivery of the motor vehicle, there being a
duty on his part to reveal them, constitutes fraud. (Article 1339, New Civil Code).

We hold that the court a quo committed grave abuse of discretion in dissolving and setting aside the writ of
preliminary attachment issued on August 17, 1977.

WHEREFORE, IN VIEW OF THE FOREGOING, the appealed Orders of the lower court dated February 2, 1979
and April 4, 1979 are hereby REVERSED and SET ASIDE. The temporary restraining order issued by Us on July
23, 1979 is hereby made permanent. No costs.

Petition granted.

SO ORDERED.

Barredo (Chairman), Aquino, Concepcion, Jr., Santos, De Castro and Escolin, JJ., concur.

Republic of the Philippines

REGIONAL TRIAL COURT
9
th
Judicial Region
Branch 14, Zamboanga City
AMERKHAN SABDULA
Plaintiff,
-versus- Civil Case No. _______________
For: Collection of a Sum of Money
RALPH JOSEPH ZERNA
Defendant.
x-------------------------------------x
COMPLAINT
Plaintiff, thru the undersigned Counsel, unto this Honorable Court,
respectfully alleges:
1.

If you still fail and/or refuse to settle the same, we will be constrained to resort to legal action to
protect the interest of our above-named client.
Hoping that you will give this matter your favorable attention and immediate action.
Truly yours,
ATTY. NORBRYAN B. EDDING

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SAMPLE JUDICIAL AFFIDAVIT

Republic of the Philippines

REGIONAL TRIAL COURT

5th Judicial Region

Branch XX

Naga City

SPOUSES JUAN AND JUANA SANTOS

               Plaintiffs
 -         versus   -                                                       Civil Case No. L-0127
                                                                           For:
Declaration of Nullity of Real                                          
Estate Mortgage

ABC BANKING CORPORATION

                                    Defendant.

x-------------------------------------------------x

JUDICIAL AFFIDAVIT

            I, ROSALINDA CRUZ, of legal age, Filipino, single, a resident of and with post office address at 123 Sta.
Cruz St. Naga City, am testifying as one of the witnesses for the defendant in the above entitled case, and,
fully conscious and aware that I answer the questions propounded under oath and may thus be held
criminally liable for false testimony or perjury, under oath, hereby depose and state:

Q1      -                 Who is the lawyer conducting this examination and please state the place where this
examination is being conducted?

A   -     Atty. ____________________________, and the examination is being held at 2/F ACE Corporate
Center, Naga City.

Q2      -                 In what manner has Atty. ________________ conducted the   examination, as regards the
questions asked and the answers you gave?

A   -     Atty. __________________ has encoded in her desktop computer the questions she prepared, and,
read them to me, and asked me to answer each and every question she asks.

Q3      -                 Is there anyone else present while the examination is being conducted?

A         -           None ma’am.

Q4      -                 Do you know the defendant in this case?

A         -           Yes, ma’am.

Q5      -                 Why do you know the defendant ABC Banking Corporation?

A         -           I am employed as the manager for its Naga City Office since  2010.

Q6      -                 What are your responsibilities as a manager?

A         -           I am responsible for the management and operations of the   bank.

Q7      -                 How about the plaintiffs in this case, do you know them?

A         -           Not personally ma’am. But I know that they filed a complaint against ABC Banking Corporation
regarding an alleged void real estate mortgage executed in favor of the bank.

Q8      -                 I am showing to you a two-page certified true copy of a “Real Estate Mortgage”  dated and
notarized on January 2, 1992 previously marked as Exhibit “1”, are you referring to this?

A        -          Yes, ma’am.

Q9      -                 Why did the plaintiffs in this case execute a mortgage contract?

A         -           It is a security for payment because the spouses Santos obtained a loan of one hundred and fifty
thousand-peso (P 150,000) from ABC Bank.

Q10      -            What are the properties mortgaged by the plaintiffs in this mortgage contract?

A         -           The plaintiffs mortgaged two parcels of land located in Naga City, the first covered by Transfer
Certificate Title (TCT) No. 12345 and the second by Tax Declaration (TD) No. 678910 and designated as
Cadastral Lot No.  10.

Q11      -            Were the plaintiffs able to pay their loan when it became due?

A         -           No, ma’am.

Q12      -            What did the bank do, if any, when the plaintiffs defaulted on their loan obligation?

A         -           After several demands, both oral and written, all of which were not heeded, the bank finally
decided to foreclose the mortgage extra judicially.

Q13      -            I am showing to you a one-page certified true copy of a “Notice of Extra Judicial Foreclosure”
previously marked as Exhibit “2”, are you referring to this?

A         -           Yes, ma’am.

Q14      -            Who was the buyer of the properties when the same were sold at the foreclosure sale?

A         -           ABC Banking Corporation, as lone bidder, bought the properties for P400,000.   ABC was issued a
Certificate of Extra-Judicial Sale.

Q15      -            Showing to you this “Certificate of Extra-Judicial Sale” marked as Exhibit “3”, are you referring
to this?

A         -           Yes, ma’am.

Q16      -            What did ABC Banking Corporation do after the issuance of the said certificate?

A         -           ABC secured a writ of possession after it acquired the property as winning bidder.

Q17      -            Did the plaintiffs redeem the properties during the redemption period allowed by law?

A         -           No, ma’am.

Q18      -            When the plaintiffs failed to redeem the properties what did ABC Banking Corporation do, if
any?

A         -           ABC Banking Corporation consolidated its ownership over the subject properties. ABC also
secured a new title over the property covered by TCT No. 12345 and new tax declaration under its name
for Lot No. 10

Q19      -            I here show you to you an “Affidavit of Consolidation of Ownership”, a “Transfer Certificate
Title No. 111213” and a “Tax Declaration No. 141516”, all of which were previously marked as Exhibits
“4”, “5” and “6” respectively, are these the documents you are referring to?

A         -           Yes, ma’am.

Q20      -            How did this case come to your attention?

A         -           On 1 May 2015, ABC Banking Corporation has received a copy of a complaint filed by spouses
Santos seeking the declaration of nullity of mortgage over Lot No. 10.
Q21      -            What is the basis of the plaintiffs in arguing that the mortgage over Lot No. 10 is void?

A         -           The plaintiffs contended that a mortgage could not have been validly constituted over Lot No.
10 because they were not the owners of the property when the mortgage was created.

Q22      -            What can you say about the plaintiffs’ contention?

A         -           Such allegation is baseless and is a desperate attempt to nullify a valid mortgage.

Q23      -            Did you verify the ownership of the plaintiffs of Lot No. 10 before the execution of mortgage
contract?

A         -           Yes, ma’am.

Q24      -            What evidence do you have to prove that the plaintiffs were the owner of Lot No. 10 before
and during the execution of mortgage contract?

A   -     Prior to the approval of the loan, our property appraiser and credit investigator conducted an ocular
inspection of the properties and verified that the spouses were in fact the owners of the properties. Their
residence is even constructed on Lot No. 10 during the execution of the mortgage up to present.

Q25      -            I show to you an “Ocular Inspection Report” previously marked as Exhibit “7”, is this the
document you are referring to?

A         -           Yes, ma’am.

Q31    -           Are there other evidence to prove their ownership of Lot No. 10?

A   -     The former tax declaration of the subject lot, Tax Declaration No. 678910, clearly reflects their
ownership of the property as early as 12 September 1990 or a little less than two years prior to the
constitution of mortgage.

Q32    -           I show to you this “Tax Declaration No. 678910” marked as Exhibit “8”, is this the same tax
declaration which proves the plaintiffs’ ownership over Lot No. 10?

A         -           Yes, ma’am.

Q33    -           Do you have anything to add?

A         -           None, ma’am.

 In witness whereof, I here sign my name this 1 st day of September, 2015 at Naga City, Philippines.

                                                                   ROSALINDA CRUZ

SUBSCRIBED and SWORN to before me, this 1 st day of September, 2015 at Naga City, personally
appeared ROSALINDA CRUZ with LTO Driver’s License No. HE98765 to expire on 08 March 2016, known to
me to be the same person who executed this Judicial Affidavit and who acknowledged to me that the same
as her free act and deed.

                     Witness my hand and seal.

Doc. No. ___

Page No. ___

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LAWYER’S ATTESTATION

            I, ___________________________________, under my own oath as a lawyer hereby attest that I

conducted the examination of the witness, that I have faithfully recorded the questions I asked and the
corresponding answers that the witness gave, and that neither I nor any other person, then present or
assisting me coached the witness regarding her answers.

In witness whereof, I here sign my name this 1 st day of September, 2015 at Naga City, Philippines.

                                                                    ___________________________________

                                                     

SUBSCRIBED and SWORN to before me, this 1 st day of September, 2015 at Naga City, personally
appeared ____________________________________ with LTO Driver’s License No. IR7890123 to expire on
27 January 2016. I further certify that I personally examined the affiant and I am satisfied that she fully
understood and voluntarily executed the foregoing attestation.

            Witness my hand and seal.

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Copy furnished: (by personal service)

ATTY. _______________________

Counsel for the Plaintiffs

123 Mayon Ave., Naga City