REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

METROPOLITAN TRIAL COURT
QUEZON CITY
BRANCH 35

JOSE REYES
Plaintiff,
Civil Case No. ____________
For: FORCIBLE ENTRY
- versus -

JUAN DELA CRUZ,

PEDRO DELA CRUZ,
CARLOS DELA CRUZ
Defendants.
x ----------------------------------- x

MOTION TO DISMISS

DEFENDANTS, through counsel and unto this Honorable Court, respectfully

move for the dismissal of the above-captioned case on the following grounds:

I.
GROUNDS

A.
THAT THE PLEADING ASSERTING THE CLAIM STATES NO CAUSE OF
ACTION

B.
THAT A CONDITION PRECEDENT FOR THE FILING OF THE CLAIM HAS NOT
BEEN COMPLIED WITH

II.
DISCUSSION

THE PLEADING ASSERTING THE CLAIM

STATES NO CAUSE OF ACTION,
AS PLAINTIFF FAILED
TO PROVE THE ELEMENTS OF
FORCIBLE ENTRY

1. Defendants admit that while in a state of great intoxication, they sought refuge at
plaintiff’s home rather than risk the dangers of travelling to their far homes in
 such state/circumstances. However, forcible entry does not exist in this case
because (a) the plaintiffs must allege their prior physical possession of the
property and b) they must assert that they were deprived of possession either by
force, intimidation, threat, strategy or stealth.

1.1 Jose was not in prior physical possession of the property as he

has not yet fully moved into the house. The house was merely
promised to him in line with his passing the recent bar
examinations. There exists no proof that the house Jose claims to
be his has already been transferred to him by virtue of the promise
and consideration given for his success in the recent bar
examinations.

1.2 Jose, likewise, was been found to be heavily intoxicated with

alcohol and high on drugs when he set foot late in his alleged
house. Jose arrived much later than the defendants, much more
intoxicated and much more delusional.

1.3 When Jose entered the house he saw the defendants sleeping.
While the intoxicated defendants were sleeping, Jose roused them
aggressively which caused the defendants to defend themselves
against Jose's attack.

2. Defendants left immediately after effects of alcohol had subsided on March 31,
2017 (early hours of April 1)

A CONDITION PRECEDENT
FOR THE FILING
OF THE CLAIM
HAS NOT BEEN COMPLIED WITH

3. Defendant failed to comply with the pre-conditional requirement of barangay

conciliation required in Book 3, Title 1, Chapter 7, (Katarungang Pambarangay),
of R.A. No. 7160, otherwise known as the Local Government Code of 1991; this
warrants the dismissal of the complaint.

3.1. Sec. 412 of R.A. 7160, otherwise known as the Local Government
Code, established the precondition to filing a complaint before the
court, to wit:

“No complaint, petition, action, or proceeding involving any matter

within the authority of the lupon shall be filed or instituted directly in
court or any other government office for adjudication, unless there
has been a confrontation between the parties before the lupon
chairman or the pangkat, and that no conciliation or settlement has
been reached as certified by the lupon secretary or pangkat
 secretary as attested to by the lupon or pangkat chairman or
unless the settlement has been repudiated by the parties thereto.”

3.2. The Court, in A.C. No. 14-931, emphasized this pre-condition

holding that,
“All disputes are subject to Barangay conciliation2, and prior
recourse thereto is a pre-condition before filing a complaint in court
or any government offices...”
3.3. Thus, the Court in Agbayani v. CA3, citing Morato v. Go, held that
“the compulsory process of arbitration is a pre-condition for the
filing of the complaint in court. Where the complaint (a) did not
state that it is one of excepted cases, or (b) it did not allege prior
availment of said conciliation process, or (c) did not have a
certification that no conciliation had been reached by the parties,
the case should be dismissed.”

3.4. And lastly, Sec. 12 of Rule 70 (Forcible Entry), calls for the
dismissal of cases which fail to show compliance with such
precondition.

Sec. 12. Referral for conciliation. Cases requiring referral for

conciliation, where there is no showing of compliance with such
requirement, shall be dismissed without prejudice, and may be
revived only after that requirement shall have been complied with.

4. Complainant also failed to comply with the requirement on Verification and

Certificate against Forum Shopping.

4.1. Sec 4, Rule 7 of the Rules of Court, as amended by A.M. No. 00-2-
10-SC4 provides that “a pleading required to be verified which
contains a verification based on “information and belief,” or upon
“knowledge, information and belief,” or lacks a proper verification,
shall be treated as an unsigned pleading.”

4.2. Sec 5 of the same rule, on the other hand, mandates the
attachment of a certification against forum shopping. To wit,

“The plaintiff or principal party shall certify under oath in the

complaint or other initiatory pleading asserting a claim for relief, or
in a sworn certification annexed thereto and simultaneously filed
therewith: (a) that he has not theretofore commenced any action or

1 Administrative Circular NO. 14-93, July 15, 1993

2 Republic Act No. 7160
3 Agbayani v CA, G.R. No. 183623, June 25, 2012

4 A.M. No. 00-2-10-SC, May 1, 2000

 filed any claim involving the same issues in any court, tribunal or
quasi-judicial agency and, to the best of his knowledge, no such
other action or claim is pending therein…”

Failure to comply with the foregoing requirements shall not be

curable by mere amendment of the complaint or other initiatory
pleading but shall be cause for the dismissal of the case without
prejudice, unless otherwise provided, upon motion and after
hearing…”

PRAYER

WHEREFORE, defendants respectfully pray that this Honorable Court dismiss the
herein complaint on the grounds of failure to state cause of action, and non-
compliance with condition precedent for filing of the claim.

RESPECTFULLY SUBMITTED.
Makati City, Philippines, this 10th of May 2017.

Counsel for Plaintiffs

Suite 0123-A, 22nd Floor, Philippine Stock Exchange Centre,
Tektite East Tower, Exchange Road, Ortigas Center 1605
Tel.No. 898-7000  Fax No. 911-1111

By:

VERONICA ANN CHUNG

PTR No. 7542531/01-03-12/Pasig City
IBP Lifetime No. 00545
MCLE Compliance No. V-0009710/03-28-18
Roll of Attorney No. 365564

CHRISTIANNE NOELLE DE VERA

PTR No. 2656124/7-2-12/Isabela
IBP Receipt No. 892771/3-7-12/Isabela
MCLE Compliance No. V-0009715/03-08-16
 Roll of Attorney No. 61143

ANNA BEATRIZ MARTINEZ

PTR No. 8005365/6-26-12/Pasig City
IBP Receipt No. 893015/3-8-12/Cagayan
MCLE Compliance No. V-0009716/03-08-16
Roll of Attorney No. 61388

FELICIA MARIE JEMIMA MOJICA

PTR No. 7544460/01-03-12/Pasig City
IBP Lifetime Member No. 09406
MCLE Compliance No. V-0009712/03-08-16
Roll of Attorney No. 57892

JOHN LOUIS TAN

PTR No. 7544453/01-03-12/Pasig City
IBP Lifetime No. 00813
MCLE Compliance No. V-0009714/03-08-16
Roll of Attorney No. 36516

MICHAEL GEOFFREY UY
PTR No. 7542531/01-03-12/Pasig City
IBP Lifetime No. 00815
MCLE Compliance No. V-0009710/03-08-16
Roll of Attorney No. 36512

Copy furnished:

Atty. Jerome Lyle Estipona

Estipona, Lising, Manauis, Montalan and Quiroz Law Firm
Counsel for Plaintiff
Rm.1234-1238 8F Gusali Bldg.
Quezon City, M. Mla.
 EXPLANATION ON MODE OF SERVICE
(Pursuant to Section 11, Rule 13 of the 1997 Rules of Civil Procedure)

The foregoing Complaint for Forcible Entry is being served to defendant by

registered mail, personal service not being practicable due to lack of messengers at
the undersigned’s office.

VERONICA ANN CHUNG

 VERIFICATION & CERTIFICATION AGAINST FORUM SHOPPING

I, [NAME] _____________________, of legal age, do hereby state that: I am

the plaintiff in the pleading/document entitled [PLEADING/DOCUMENT BEING
VERIFIED] ___________________ and in such capacity, caused this Complaint to
be prepared; I have read its contents and affirm that they are true and correct to the
best of my own personal knowledge; I hereby certify that there is no other case
commenced or pending before any court involving the same parties and the same
issue and that, should I learn of such a case, I shall notify the court within five (5)
days from my notice.

IN WITNESS WHEREOF, I have signed this instrument on

[DATE]_____________.

[SIGNATURE]
[NAME] _________________

SUBSCRIBED AND SWORN TO before me in the City of _______________

on this day of [MONTH AND YEAR]_________________, affiant exhibiting before
me his Government Issued ID no. _______________ issued on
[DATE}__________________ at [PLACE OF ISSUANCE]_____________________.

[SIGNATURE]
[NAME]_______
Notary Public

Until [DATE]__________________
PTR No. [NUMBER] ____________
Issued at [PLACE]______________
On [DATE] ___________________

Doc. No.
Page No.
Book No.
Series of [YEAR] ___________.