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Republic of the Philippines REGIONAL TRIAL COURT Las Pinas City Branch 275 DANILO GALLARDO, Plaintiff, -versusCivil

Case No. 09-0110

MARIO LEYVA, JOSE ISONG ROBERT DURANO, ERNESTO FLORES RAFAEL MERIN, ELIZABETH CHI ADOLFO JERESANO, RUPERTO NOLASCO CRESENCIO ESTRELLA, LETICIAL MARCELO BENJAMIN NOLASCO, DOLORES PULLON, ANTONIO PULLON, CANILO SERINIA and RAFFY CAHEDA, Defendants. X-------------------------------------X

MEMORANDUM FOR THE DEFENDANTS ISONG & COMPANY

DEFENDANTS JOSE ISONG, ROBERT DURANO, ERNESTO FLORES and RAFEL MERIN, most respectfully submit their MEMORANDUM and state, viz:

PREFATORY

This is an Appeal from the Decision of the Metropolitan Trial Court, Las Pinas City, Branch 79, dismissing the case for lack of jurisdiction. The case was then raffled to this Honorable Court and defendants were directed to file their Memorandum in response to Plaintiffs Memorandum. Plaintiff filed his Memorandum copy furnished the defendants. Memorandum. Brief Statement of Plaintiffs Arguments: Hence this

Plaintiff in his Memorandum raised three (3) Assignments of Errors, namely: 1) That the Metropolitan Trial Court (MTC) erred in not admitting or considering the position paper of the plaintiff, now appellant; 2) That it erred in dismissing the complaint for not being unlawful detainer or forcible entry; and 3) That it erred in not resolving the ownership of the property.

Arguments As to the First Assignment of Error: The MTC erred in not admitting the plaintiffs Position Paper as this was denial of due process

.02

Plaintiff in fact admitted that his Position Paper was filed out of time. It was filed more than two (2) months after it should have been filed. While plaintiff argued that with the denial for consideration of his Position Paper, he was allegedly denied due process, the lower court was correct in saying that the failure of one party to submit his position paper does not bar at all the MTC from issuing a judgment on the ejectment complaint. And that in fact, the court may just relay on pleadings and proceedings held in the court. In this case the MTC relied on the Complaint, Answers of the respective defendants, the record of preliminary conference and the Position Papers submitted by the defendants in this case. The MTC applied the case of Terana vs. De Sagun, G.R, No. 152131, April 29, 2009 in denying the admission and consideration of the much delayed Position Paper of the plaintiff.

We contend there was no denial of due process because despite the non-admission of the position paper, the court could still nonetheless decide on the basis of the available records including the plaintiffs complaint and the record of the preliminary conference wherein the plaintiff participated therein. In other words, plaintiffs position could still be appreciated on the basis of the complaint and his participation in the preliminary conference.

As to the Second Assignment of Error: The MTC erred in dismissing the complaint for not being an unlawful detainer or forcible entry case

Defendants ISONG extensively discussed why the case should be dismissed for failure to allege Jurisdictional Facts:

Plaintiff-appellant cause of action is Unlawful Detainer. However, a deliberate reading of the complaint will reveal the complaint is bereft of allegations that will vest jurisdiction to the MTC. The basic rule is ejectment complaints must definitely and clearly show that plaintiffs action is either for forcible entry or unlawful detainer. Otherwise, failure to allege jurisdictional facts, on the face of the complaint, would justify dismissal thereof.

Jurisdiction is determined by the allegations in the complaint. The fundamental rule in ejectment cases is the allegation of how the defendants entered the premises as this will determine whether the case is for forcible entry or unlawful detainer and whether the court will have jurisdiction to try the case. Paragraph 1 of the complaint states that defendants are squatting on the land located ay Kay Bangias Manuyo, Las Pinas City. We are however in a quandary whether the squatting was thru force, intimidation, strategy or stealth or the squatting was by tolerance.

.03 During the preliminary conference hearing, it was admitted by the plaintiffs that there is NO CONTRACTUAL RELATIONS BETWEEN PLAINTIFFS and DEFENDANTS ISONG, DURANO, FLORES AND MERIN. (Page 2 Stipulation #2 Preliminary Conference Order) The absence of any contractual relations either express (based on a written contract) or implied (without a written contract or by tolerance) takes out the case from the purview of unlawful detainer since there can only be unlawful detainer IF THERE IS A CONTRACT, EXPRESS OR IMPLIED.

Plaintiff-appellants admission that there is and was no contractual relations between the parties negate a cause of action for Unlawful Detainer.

Again during the preliminary conference hearing, plaintiff-appellant admitted under stipulation #4 page 1 and we quote: 1. xxx 2. xxx 3. xxx 4. That the plaintiff, as heir of Patrocinio Gallardo, filed this case for unlawful detainer after defendants occupied the premises by mere tolerance xxx Let us again go into a brief academic discussion of tolerance. Professor Arturo M. Tolentino states that acts merely tolerated are those which by reason of neighborliness or familiarity, the owner of property allows his neighbor or another person to do on the property; they are generally those particular services or benefits which ones property can give to another without material injury or prejudice to the owner, who permits them out of friendship and courtesy.

The Supreme Court in the case of Sarona vs. Villegas 22 SCRA 1264, makes an enlightening discussion on the determinative effects of tolerance by the owner of the defendants possession, to wit: If right at the incipiency defendants possession was with plaintiffs tolerance, we do not doubt that the latter may require him to vacate the premises and sue before the inferior court under Section 1 of Rule 70, within one year from the date of the demand to vacate because from the date of demand, possession became unlawful. And the case is illegal detainer or Unlawful Detainer Note however that since there was not contractual relations between the plaintiffappellant and herein defendants as admitted by the plaintiff during the preliminary conference hearing, the allegation of tolerance cannot inure to herein defendant. And since the parties are bound by the stipulations at the preliminary conference, tolerance does not apply to herein defendants.

.04 Where there was forcible entry right from the start of defendants possession, then a forcible entry action may be filed WITHIN one year from the date of entry. Note however that the complaint is silent as to when defendants allegedly started to squat on the alleged property and how the squatting started, that is, whether it was attended by force, intimidation, strategy or stealth, the implication on the alleged squatting as alleged in the complaint is indeed vague. Where there was forcible entry at the start of possession but the lawful possessor did not attempt to oust the intruder for more than one year, then the suit to be filed must be an accion publiciana before the Regional Trial Court.

Applying the foregoing postulates and assuming for the sake of argument that there is indeed tolerance, plaintiff-appellants allegation in the complaint does not categorically state when the entry of defendants started. And if and when there was tacit consent at the start of the entry or if at the start of entry there was force, intimidation, strategy or stealth.

Let us now proceed to a brief discussion of basic fundamental rules in ejectment cases, the pertinent law governing which is Rule 70 of the Revised Rules of Court so we can digress whether the complaint states a sufficient cause of action which will result in the dismissal of the case.

There are two distinct causes of action namely: 1) action to recover possession founded on illegal occupations from the beginning (Forcible Entry) and 2) action founded on unlawful detention by a person who originally acquired possession lawfully (Unlawful Detainer)

There is forcible entry when one is deprived of physical possession of any land or building by means of force, intimidation, threat, strategy or stealth. There is unlawful detainer when one unlawfully withholds possession thereof after the expiration or termination of the right to hold possession under any contract, express or implied.

In the determination of whether an inferior court has jurisdiction over ejectment suits, it is well to remember the consistent doctrine laid down by the Supreme Court in the case of Sumulong vs. Court of Appeals, 232 SCRA 372 and we quote: Well-settled is the rule that what determines the nature of the action as well as the court which has jurisdiction over the case are the allegations in the complaint. Xxx The designation or caption is not controlling, more than the allegations in the complaint themselves are, for it is not even an indispensable part of the complaint.

.05 In Pasaqui vs. Villablanca, 68 SCRA 18, it has also been said that in ascertaining whether or not the action is one for forcible entry or illegal detainer within the exclusive jurisdiction of inferior courts, the averments of the complaint and the character of the relief sought are the ones to be consulted. The complaint in ejectment suits must definitely show that plaintiffs action is either for forcible entry or unlawful detainer. Otherwise, failure to allege jurisdictional facts on the face of the complaint would justify dismissal of the complaint. As the Supreme Court articulated in the case of Sarona vs. Villagas, 22 SCRA 1257: The law and jurisprudence leave no doubt in our mind that what determines the cause of action is the nature of defendants entry into the land. If entry is illegal, then the cause of action which may be filed against the intruder within one year therefrom is forcible entry. If, on the other hand, entry is legal but thereafter possession became illegal, the case is one of illegal detainer which must be filed within one year from the date of last demand. Xxx We observe a lack of precision-tooling in the complaint. Defendants alleged entry into the land is not characterized whether legal or illegal. It does not say how defendants entered the land and constructed their residential house thereon. It is silent too, whether possession became legal before plaintiffs made the demand to vacate and to pay rentals. Nor does the complaint as much as intimate that defendants are plaintiffs tenants. So that the case would not come within the coverage of Section 2 of Rule 70. Failure to specifically aver in the complaint facts which definitely show that plaintiffs action is for forcible entry or unlawful detainer, is not to be lightly treated. The jurisdictional facts must appear on the face of the complaint.

In forcible entry, the plaintiff must allege in the complaint, and prove, that he was in prior physical possession of the property in dispute until he was deprived thereof by the defendant by any of the means provided in Section 1 Rule 70 of the Rules of Court either by force, intimidation, threat, strategy or stealth. The mere allegation that plaintiff was deprived of the possession of the land by the defendant is insufficient. Sumulong vs. Court of Appeals, 232 SCRA 374; Demamaya vs. CA, 186 SCRA 608; Sacloba vs. Intermediate Appellate Court, 159 SCRA 63.

In unlawful detainer, there must be an allegation in the complaint of how the possession of the defendant started or continued, that is, by virtue of lease or any contract, and that defendant holds possession of the land or building after the expiration or termination of the right to hold possession by virtue of any contract, express or implied (Sec. 1 Rule 70, Rules of Court)

.06 In the case at bar, the absence of any contractual relations nor even an allegation thereof on the face of the complaint is fatal. There is nothing in the complaint which alleges a

contractual relation between the parties either express or implied by tolerance. This is therefore fatal to the complaint. Relatedly, when occupant is a tenant by tolerance of the owner or the latters predecessor-in-interest, the tenant is bound by the implied promise to vacate upon demand.

In the case of Deveza vs. Montecillo 27 SCRA 822, the Supreme Court laid down the following instances where averments in the complaint do not show facts that give jurisdiction to the inferior court, the pertinent highlights of which states:

(1) Where there is no averment in the complaint that plaintiffs were deprived of possession of the land in dispute by force, intimidation, threat, strategy, or stealth (Sec. 1 Rule 70, Rules of Court) which would bring their case within the meaning of forcible entry, nor an allegation that defendant holds possession of the land after the expiration or termination of the right to hold possession by virtue of any contract, express or implied, there would be no way of knowing how the defendants possession started or continued. The complaint perforce does not show facts which would vest upon the inferior court jurisdiction to entertain the case either as forcibgle entry or unlawful detainer. (2) Where the complaint is silent as to the time when the defendant entered into or took possession of the land, plaintiffs merely stating that upon relocation survey it was discovered that defendant has, knowingly or unknowingly, been occupying a portion of the land they own, there would be no way of determining the one (1) year after such unlawful deprivation or withholding of possession within which an ejectment suit may be filed in the inferior court. The court should therefore dismiss the case. (3) If from the allegations of the complaint it can be inferred that if defendant is in possession of the portion of the land in question, it is because he either claims ownership thereof or has been usurping the land for quite sometime, then a full blown inquiry to determine who has the better right to possession or ownership, not a summary action such as forcible entry or illegal detainer, is in order. A choice of remedies is thus afforded to the plaintiffs either accion publiciana or accion reinvidicatoria.

Even by tolerance, the same cannot be applied, as this allegation and much more is absent in the complaint as earlier discussed. Failure of the complainant to allege jurisdictional facts warrants dismissal of the case. Plaintiffs allegations in his complaint do not state a sufficient cause of action either for Forcible Entry or Unlawful Detainer. As stated earlier, the allegations in the complaint determines

.07 whether the court has jurisdiction to try the case. If the allegations in the complaint make out a case for Unlawful Detainer, the contractual relations between the parties, either express or implied must be alleged in clear and equivocal terms. Demand to vacate is required and the filing of the case must be within the one (1) year period reckoned from the date of demand. If the allegations in the complaint make out a case for Forcible Entry, prior physical possession must be alleged in the complaint and the circumstances alleging how the entry of the defendants by force, intimidation, strategy or stealth must be alleged. Material likewise is the allegation of the time of the entry into the property as this will be determinative of the one year period. No demand is needed. Plaintiffs complaint is vague and ambiguous to make out a case either for Unlawful Detainer or Forcible Entry. As to the Third Assignment of Error: ownership of the property. The MTC erred in not resolving the issue of

This issue is not applicable to the defendants Isong, the reason being defendants have not alleged ownership of the property in question. In fact, Isong alleged that the land they occupied is of public domain. Hence Section 16 of Rule 70 (Resolving defense of ownership is not applicable)

PRAYER

WHEREFORE premises considered, it is respectfully prayed of this Honorable Court that judgment be rendered (1) AFFIRMING the Decision dated October 02, 2009 dismissing the Complaint for lack of jurisdiction.

Other reliefs, just and equitable, are likewise prayed for.

Atty. MARIA LOURDES P. GARCIA Counsel for Appellees Isong & Co. Wheels Executive Suites Wheels Bldg., E. Rodriguez Sr. Ave., Quezon City IBP No. 797188 dtd. 01-07-10 Pasig City PTR No. 592535 /01/14/10/ Rizal Roll No. 33476 MCLE Compliance II - 0009328

Republic of the Philippines REGIONAL TRIAL COURT Las Pinas City Branch 275 DANILO GALLARDO, Plaintiff, -versusCivil Case No. 09-0110

MARIO LEYVA, JOSE ISONG ROBERT DURANO, ERNESTO FLORES RAFAEL MERIN, ELIZABETH CHI ADOLFO JERESANO, RUPERTO NOLASCO CRESENCIO ESTRELLA, LETICIAL MARCELO BENJAMIN NOLASCO, DOLORES PULLON, ANTONIO PULLON, CANILO SERINIA and RAFFY CAHEDA, Defendants. X-------------------------------------X MOTION FOR LEAVE OF COURT TO ADMIT ATTACHED MEMORANDUM FOR DEFENDANTS ISONG & COMPANY

DEFENDANTS JOSE ISONG, ROBERT DURANO, ERNESTO FLORES and RAFEL MERIN, by counsel and unto this Honorable Court, with leave of court, most respectfully move to admit attached Memorandum and state, viz:

01. That undersigned law firm received a copy of the Memorandum for the Plaintiff last December 15, 2009 while counsel was on an out of town vacation; 02. Thus, the last day for filing Memorandum was on January 04, 2010; however due to counsels extended vacation and then later after she arrived and due to heavy volume of work, undersigned was able to file the memorandum today, January 21, 2010; 03. This Motion is not intended to delay the proceedings of this case were it not for the reason aforestated.

WHEREFORE premises considered, it is most respectfully prayed of this Honorable Court that leave be granted to admit the attached Memorandum for defendants Isong & company. Such other reliefs, just and equitable, are likewise prayed for. Quezon City for Las Pinas City. January 21, 2010.

Atty. MARIA LOURDES P. GARCIA Counsel for Appellees Isong & Co. Wheels Executive Suites Wheels Bldg., E. Rodriguez Sr. Ave., Quezon City IBP No. 797188 dtd. 01-07-10 Pasig City PTR No. 592535 /01/14/10/ Rizal Roll No. 33476 MCLE Compliance II - 0009328

Copy Furnished: Atty. Adolfo B. Ortiz ---------------Registered mail with return card Counsel for Plaintiff 10 Florence, Merville Paranaque Atty. Diane Patricia D.R. Arceo---------Personal Service Public Attorneys Office Las Pinas City Atty. Marinela Sayoto -----------Registered mail with return card Dominguez and Associates Law Offices Rm 201 DRB Building Aguinaldo Highway Palico, Imus Cavite

Explanation A copy of the foregoing Memorandum was sent thru registered mail to Atty. Ortiz and Sayoto instead of personal service in view of lack of manpower to effect personal service.

MARIA LOURDES P. GARCIA