Republic of the Philippines

REGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION
Branch _____
Pasig City

RACHAEL M. RAFOLS CIVIL CASE NO. _______

Plaintiff,

-versus -for-

SHOPPING MALL ACTION FOR DAMAGES

Defendants,
x---------------------------------------x

COMPLAINT

COMES NOW PLAINTIFF, Unto this Honorable Court most

respectfully states:

THE PARTIES

1. That the plaintiff is is of legal age, Filipino, married and a

resident of 713 Citystate Condominium, Shaw Boulevard, Pasig City,
where she may be served with notices and other court processes;

2. That defendant Shopping Center Management

Corporation Mall of Asia (MOA) is a domestic corporation which can
sue and be sued with principal address at J.W. Diokno Boulevard,
Mall of Asia Complex, CBP - 1A Pasay 1300, Philippines, where it
may be served with summons and other court processes;

3. That defendant Crawford and Company Philippines, Inc is

a domestic corporation which can sue and be sued with principal
address at _______________, where it may be served with summons
and other court processes;

4. That on or about 08:50 in the evening of June 01, 2013,

after Ma. Daphne Joanne Rafols (child) with her mother Rachael
Rafols (mother) and _____ after she finished her dinner in one of the
big umbrellas with metallic post and light bulb at the food court of
defendant MOA, the plaintiff child stood up and went to the nearside
stainless steel railing to watch the carousel ride below;

5. That after a few moment, the plaintiff child fell on the

ground immediately after she got hold of the metallic post with light
bulb of the umbrella where she and the plaintiff mother and ____
were dining out;

6. That the plaintiff child was unconscious for seconds and

when she regained consciousness, she shouted for: Mama!;

7. That when the plaintiff mother raised the plaintiff child, the
former got electrocuted while she got hold of the railing and the
metallic post with light bulb of the umbrella;

8. That instantly, the plaintiff child was crying and trembling

and the plaintiff mother and _______ were shocked by the incident
and at that moment they shouted for help;

9. That the plaintiff mother observed that the right hand of the
plaintiff child was reddish and swollen with electric burn blisters and
her right forearm was also reddish and quite swollen;

10. That after the plaintiff shouted for help, the employee in-
charge of cleaning the tables of the food court of defendant MOA
tried the assist the plaintiff but suddenly the latter also felt electric
ground coming from the said metallic post;

11. That the aforesaid employee then called additional help

from the security guards of defendant MOA;

12. That the security guard who responded brought the

plaintiff child to the clinic of the defendant MOA for first aid;

13. That when the clinic personnel could no longer manage the
pain felt by the plaintiff child, the latter was brought to the San Juan
De Dios Hospital (hospital) in Pasay City for medical treatment;

14. That when this electrocution incident was known to the

Station Investigation Branch, Pasay City Police Station, Police Officer
3 Melvin Garcia and Police Officer 2 Robinson Alsol proceeded to the
hospital for investigation. However, according to the hospitals
probers, when they went to the defendant MOA and coordinated with
the Duty Guard for the conduct of ocular investigation, Mr Christian D
Basa, CRS Representative, did not allow the probers to investigate
because an approval from Chief, CRS must first be obtained before
allowing the probers to proceed. Attached as Annex is the Spot
Report dated 02 June 2013 prepared by the Pasay City Police
Station;

15. That due to the electrocution suffered by the plaintiff child,

she was admitted to the hospital for _________ days due to first
degree electrical burn at the right hand and which she complained of
wrist pain and palm at her right. It was also noted that right wrist of
the plaintiff child was swelling. Attached as Annex is the Clinical
Summary of the plaintiff child attended by her Physician, Dr. Mendiola
and Dr. Almonte;

16. That after a series of medical examination conducted to the

plaintiff child, the X-ray result revealed that her right forearm was
fractured. Attached as Annex and Annex are the X-ray result
and Medico-Legal Certificate of the plaintiff child;

17. That during the time the plaintiff child was hospitalized,
she was experiencing trauma brought by the electrocution incident.
She kept on waking-up when sleeping and said that she dreamt
about the incident. Further, it was also observed that after the
incident she was afraid of touching anything similar to a post/pole
(big umbrella) for fear that he might be electrocuted again;

18. That because of the mental and psychological condition of

the plaintiff child, she was seen and examined by her attending
physician with noted flashbacks, nightmares and avoidance. The
plaintiff child was then referred to a psychiatrist. (Annex ___);

19. That on June 07, 2013, the plaintiff child consulted to

Psychiatrist Evelyn G. Gapuz, MD and the former was assessed to
have Acute Stress Disorder with the following symptoms, to wit:

She presented with anxiety symptoms related to a

traumatic situation (electrical burns secondary to
electrocution) sustained on June 1, 2013. At present, she
experiences re-experiencing of the event through
nightmares (content of which was related to the traumatic
event), crying episodes, being clingy, with hyperarousal
symptoms (easily startled, palpitations), avoidance of the
place where the event happened or avoidance of
electrical appliances that may potentially cause more
electrical burns. She has likewise expressed her anxiety
about going back to school with her cast on (for the
fracture) for fear of being laughed at by her classmates or
embarrassed by her teacher.
20. That due to aforesaid disorder, the plaintiff child was
recommended for therapy sessions and monitoring visits once every
two (2) weeks for approximately twelve (12) sessions. Attached as
Annex is the Medical Certificate dated June 7, 2013 issued by Dr.
Gapuz;

21. That after discharge from the hospital and initial check-up
from the psychiatrist, the plaintiff child returned home in Zamboanga
City on June __, 2013, this being that she is leaving in Zamboanga
City with the plaintiffs mother. The plaintiff child was just on vacation
at the time of the incident in Manila where her mother is working and
residing;

22. That June 25, 2013, the plaintiff child

23. e plaintiff child

24. That due to the plaintiff childs fractured arm, she was

25. hte iad., the plaintiff asked for medical assistance

26. got electrocuted from the metallic stand (post) with light
bulb of one of the of your establishment, SM Mall of Asia (MOA);

27. That immediately after the electrocution, the right hand of

the child was reddish, swollen with electric burn blisters and her right
forearm was also reddish and quite swollen. She was then admitted
to San Juan de Dios Educational Foundation Hospital Inc. for
treatment. The X-ray of the childs forearm revealed incomplete
fracture at right distal radius.

28. That plaintiff is the present registered owner and

paraphernal owner of parcel of agricultural land under Certificate of
Land Ownership Award no. 123, 456, the same is hereunder
described as follows:
TCT NO. T-143445

A parcel of land (Lot 367-C) of the

subdivision plan, PSD-09-012228,being a portion of
Lot 367, Zamboanga Ca. situated in the Barangay of
Boalan, Zamboanga City, Island of Mindanao,
containing an area of TWO THOUSAND AND
SEVENTY FIVE (2,075) SQUARE METERS.

a copy of the tile is hereto attached as Annex A;

29. That the aforesaid property has an assessed value of Php
3,490.00 per Tax Declaration hereto attached as Annex B;
30. That plaintiff obtained said property from her adoptive
parents who sold the same to her on April 22, 1997, a copy of the
previous title with the annotation of sale is hereto attached as Annex
C;
31. That defendant Tiera Aires is the daughter of Markie Diesto
, the latter being the previous occupant of the subject lot who was
allowed by plaintiffs predecessor in-interest to occupy a portion of
the subject lot way back in 1980s as she has not lot to erect her
house aside from the fact that they are relatives;
32. That the occupation of the herein defendant spouses in the
subject property was allowed by plaintiffs predecessor-in-interest
under the spirit of neighborliness and is merely tolerated out of
kindness of the latter;
33. That when herein plaintiff acquired ownership over the said
property by virtue of the aforesaid sale, she allowed defendants to
continuously occupy the said property;
34. That however, after eleven (11) years of allowing
defendants to enjoy the use of her property from 1997 to present,
plaintiff eventually intended to recover material possession thereof,
hence the privilege or tolerance given unto said defendants for the
previous years is deemed terminated after demand to vacate has
expired. That under the law, acts merely tolerated, no matter how
lengthy , does not affect possession, hence, the same cannot ripen
into ownership. Thus Art. 537 of the Civil Code, Book II provides:

Art 537. Acts merely tolerated, and those

executed clandestinely and without the knowledge of
the possessor of a thing, or by virtue of violence, DO
NOT AFFECT POSSESSION.

35. Consequently, a FINAL DEMAND TO VACATE dated

October 20, 2008 was sent to herein defendants as evidenced by
registry receipt no. 2114, as a settled rule, once possession is
TOLERANCE, it becomes illegal upon demand to vacate. (Anis vs
Aragon, L-4685, April 28, 1951). Considering that the acts of
plaintiffs in allowing defendants to occupy the said property is merely
tolerated, defendants are necessarily bound by an implied promise to
vacate upon demand, failing which, an action for unlawful detainer
will lie. (Felix De Guzman Ocampo vs. Fernandez, G.R. 164529,
June 19, 2007). The act of defendants constitutes violation of the
rights an owner to jus utendi and jus possidenti as provided under the
law. A copy of said demand letters is hereto attached as Annex D;

36. That plaintiff was further constrained to elevate the matter

to the Barangay for mediation and conciliation but which eventually
failed as defendants wilfully refused to appear, a copy of the
Certificate to File Action is hereto attached as Annex E;

STATEMENT OF CAUSE OF ACTION

37. That plaintiff has the right to demand the return of her
property as an exercise of a right of a lawful owner to jus vindicandi,
at any time as long as the possession was unauthorized or merely
tolerated. This right is never barred by laches, because, possession
by mere tolerance does not start the running of the prescriptive
period. (Herminia Estrella vs. Gregorio Roblews, G.R. No. 171029,
November 22, 2007);
38. That the occupancy of the defendants was at the plaintiffs
sufferance from the enjoyment of the latter right as the true owner,
hence, defendants are considered as possessors in bad faith after
demand to vacate within the period stated in the demand letter
expired;
39. That plaintiff needs to resort to judicial process considering
that defendants resisted to surrender the property to herein plaintiff
after proper demand has been made, hence, an accion interdictal for
unlawful detainer is one of the proper remedies provided by law;
40. That the action for unlawful detainer must be within one
year from the time possession becomes unlawful, hence considering
that a final demand was already served to defendants on October 20,
2008, the same is well within the period to recover, such material
possession of the defendants of the subject property is already
UNLAWFUL;
41. That finally, the pure benevolence of plaintiff in allowing
herein defendants to occupy the said property was clothed with
fervent and altruistic character as a good Samaritan, however, such
act is not demandable o the part of the plaintiff, in which the latter
may be compelled to fulfil. Moreso, the continues material
possession of the defendants over the said property deprives herein
plaintiff for the enjoyment of the same;
42. That due to defendants adamant refusal to vacate, the
subject lot, plaintiff was constrained to obtain the services of the
undersigned counsel for which she obligated to pay Php 15, 000.00
for attorneys fees and Php1,000.00 per court appearance;

P R AY E R
NOW WHEREFORE, foregoing premises considered it is most
respectfully prayed of the Honorable Court that after notice and
hearing, judgment be rendered in favour of plaintiff Suzette Tucay
and against defendant Sps. Aguanio & Tiera Aires & other persons
staying therein under their care and supervision, ordering them to:
1. Immediately vacate the subject property and to surrender
possession thereof to herein plaintiff;
2. Further indemnify herein plaintiff the amount of FIFTEEN
THOUSAND PESON (Ph[ 15,000.00) as Attorneys fees plus ONE
THOUSAND PESOS (Php1,000.00) per court appearance;
3. The costs of the suit.
Other relief as may be necessary under the premises are
likewise prayed for.

RESPECTFULLY SUBMITTED, this ______________ day of

________________, 2014 Pasig City, Philippines.
Republic of the Philippines)
City of Zamboanga )S.S.
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VERIFICATION/CERTIFICATON

I, SUZETTE A. TUCAY, of legal age, Filipino, married and a resident of

Boalan, Zamboanga City, after having been duly sworn to an oath in accordance
with law, do hereby deposes and states:

1. That I am the plaintiff of the above-entitled cases, that I have caused the
filing of this complaint, and that the facts stated therein are true of my own
personal knowledge and based on authentic records available;

2. That I further certify that I have not commenced any other action or
proceeding involving the same issue in the Supreme Court, the Court of
Appeals, or other different Divisions thereof; or any other court, tribunal or
agency; that to the best of my own knowledge, no such action or
proceeding is pending in the Supreme Court, The Court of Appeals, or
different Divisions thereof, or any tribunal, court or agency except in the
instant complaint against the defendants; and

3. That I undertake that if I should learn that a similar action or proceedings

has been filed or is pending before the Supreme Court, the Court of
Appeals, or different Divisions thereof, or any tribunal, court or agency,
within five (5) days from suck knowledge.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my

signature this ______ day of ____________________, 20___ at Zamboanga City,
Philippines

SUZETTE A. TUCAY
Affiant

SUBSCRIBED AND SWORN to before me this _____ day of ___________,

20___ at the City of Zamboanga, Philippines. Affiant exhibited to me her Community
Tax Certificate bearing no. 24680246, issued on ____________ at Zamboanga City,
Philippines.

Doc No. _____

Page No. ____
Book No. ____
Series of 20___