Republic of the Philippines

National Capital Judicial Region

METROPOLITAN TRIAL COURT
Branch 39, Quezon City

LORNA LEGASPI BLANCO,

Plaintiff,
-versus- Civil Case No. 19-00401

NESTOR ROQUE and ARCEO

ROQUE, and all persons claiming
Rights under them,
Defendants
x----------------------------------------------------x

COMMENT TO MOTION TO DISMISS

Plaintiff, through counsel, respectfully files this comment on the motion to

dismiss filed by the Defendants on 27 February 2019 and was received by the
Plaintiff on the same date.

Plaintiff, through undersigned counsel and unto the Honorable Court

respectfully state that:

1. On 27 February 2019, Defendants through Counsel filed a Motion to Dismiss

and was based on the following grounds:
a. Lack of Legal Capacity of Plaintiff to Sue;
b. Condition Precedent for Filing the Claim has not been Complied with;
c. Lack of Jurisdiction over the Subject Matter; and
d. The Property Claimed by the Plaintiff is not the same as Defendants.
2. That upon a thorough review of defendants’ averments, plaintiff respectfully
submits that the said Motion to Dismiss is bereft of merit.

LACK OF LEGAL CAPACITY OF

PLAINTIFF TO SUE, PROPERTY
CLAIMED BY THE PLAINTIFF IS
NOT THE SAME AS
DEFENDANTS ARE
PROHIBITED GROUNDS FOR A
MOTION TO DISMISS UNDER
THE REVISED RULES ON
SUMMARY PROCEDURE

1
 As expressly provided in Section 19 (a) of the Revised Rules on Summary
Procedure, “Sec. 19. Prohibited Pleadings and Motion. The following pleadings,
motions or petitions shall not be allowed in the cases covered by this Rule:

(a.) Motion to dismiss the complaint or quash the complaint or information

except on the ground of lack of jurisdiction over the subject matter, or
failure to comply with the preceding section

xxx”

It is therefore clear from the aforementioned rule, that the only ground
allowed for a motion to dismiss is on the ground of lack of jurisdiction over the
subject matter, and considering that the Defendants raised a ground not allowed by
the rules, the instant motion to dismiss must be denied.

It is also worth noting that on 12 March 2019 hearing, the Honorable Judge
reminded the Defendant that as expressly provided in the Rules, the Honorable
Judge is constrained to rule only on the ground as allowed by the Rule on Summary
Procedure.

The purpose of the Rules on Summary Procedure is to prevent undue delays

in the disposition of cases and to achieve this, the filing of certain pleadings is
prohibited1.

FAILURE TO COMPLY TO
CONDITION PRECEDENT
HAS BEEN SUBSTANTIALLY
COMPLIED WITH

As provided in Section 412 of the Local Government Code, “Sec. 412.

Conciliation. – (a) Pre-condition to Filing of Complaint in Court – x x x x 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 x x x”. In the
instant case, the Plaintiff referred her complaint before the Barangay Holy Spirit
who conducted conciliatory talks between the Defendants and Mr. Ernesto Garcia, as
the Plaintiff’s representative as evidence by Annex “G”. In addition, the Plaintiff,
through her representative, was also referred to the Urban Settlers Assistance
Division (USAD) of the Local Government by the same officer who conducted the
Barangay Conciliation, Rose Cerenio. In the said conciliatory proceeding, as
evidenced by Annex “H”, the Minutes of the Proceedings stated therein the Decision
of BOTH PARTIES to see each other in court proceedings.

1
Estate of Felomina G. Macadangdang vs. Lucia Gaviola, G.R. No. 156809

2
 Consequently, the contention of the Defendant of the absence of the
Certificate to File Action is substantially complied with by the acquiescence of the
Defendant to continue the action in court.

LACK OF JURISDICTION
OVER THE SUBJECT ON THE
GROUND THAT THERE IS NO
WRITTEN NOTICE OF
DEMAND TO PAY AND
VACATE IS NOT APPLICABLE
IN FORCIBLE ENTRY CASES

Defendants posit that there must be service of a written notice to demand and
vacate the premises in order to commence an action however it is a well-entrenched
jurisprudence that demand to vacate is not necessary in forcible entry cases2. Basic
as a hornbook principle is that jurisdiction over the subject matter of a case is
conferred by law and determined by the allegations in the complaint which comprise
a concise statement of the ultimate facts constituting the plaintiff's cause of action.
The nature of an action, as well as which court or body has jurisdiction over it, is
determined based on the allegations contained in the complaint of the plaintiff,
irrespective of whether or not the plaintiff is entitled to recover upon all or some of
the claims asserted therein. The averments in the complaint and the character of the
relief sought are the ones to be consulted3. What determines the jurisdiction of the
court is the nature of the action pleaded as appearing from the allegations in the
complaint. The averments therein and the character of the relief sought are the ones
to be consulted4.

Thus, reading the Complaint filed by the Plaintiff it is clear from the
allegations that it was particularly around February 2018 when the Plaintiff
discovered that illegal settlers have entered through stealth or otherwise and these
intruders were identified as the herein Defendants and their families. For this
reason, the case is for Forcible entry and not unlawful detainer hence written notice
of demand to vacate and pay is not necessary in the instant case.

PRAYER

WHEREFORE, after due hearing, it is respectfully prayed that the Motion to

Dismiss filed by the Defendants be DENIED.

Marikina City, ____ March 2019

2
Menez vs. Militante, 41 Phil 44.
3
City of Dumaguete vs. Philippine Ports Authority, G.R. No. 168973, 24 August 2011
4
Fort Bonifacio Development Corporation v. Domingo, G.R. No. 180765,27 February 2009

3
 Atty. Felix Voltaire P. Lerio II
For the Plaintiff
No. 73 F. Mariano Ave., Brgy. Dela
Paz, Pasig City
PTR No.
IBP No.
Roll No.