ANALYSIS OF 11/25/2014 COMMENT ON PETITION FOR CERTIORARI

Even though the Petition filed by Subaru clearly lacks merit, the attorney still has to spend considerable
time in explaining to the appellate court why. I believe the attorney makes a very strong case not only to
the lack of merits in the petition, but also explains why this petition has so little basis in fact and
established case law that it should never have been filed in the first place.
 I \

. ,, \
REPUBLIC OF THE PHILIPPINE . ··:· . ··--..... ·-·,----�
COURT OF APPEALS ·. · ..· :" H 'i 60.
16th DIVISION
MANILA

MOTOR IMAGE PILIPINAS,

INC., and MR. BENEDICTO G.
ARCINAS,
Petitioners,
CA-G.R. SP NO. 137315
't%1Jlo
- versus

...
REGIONAL TRIAL COURT,
.,.,._.; CITY OF PASIG, BRANCH 160,
(SAN JUAN CITY STATION)
presided by Hon. MYRNA V.
LIM-VERANO and JULIAN
COHEN.
Respondents.
X-------------------------------------- X

COMMENT

Private respondent Julian Cohen, through the undersigned

counsel, most respectfully states;

1. Before the Honorable Court is a Petition for Certiorari under

Rule 65 that irresponsibly ascribes grave abuse of discretion when the
Honorable Judge denied petitioner's'motion for a preliminary hearing to
have the case dismissed.

2. Allegedly, if given the chance to present evidences,

petitioners will be able to prove the lack of a cause of action 1 ,
prescription2 and the violation of BAR Matter 1922. 3

1 1 st issue, pages 5-6 of the Petition dated 22 September 2010.

issue, pages 7-9, ibid
1 tl1"'"
22nd

" 3rd issue, page 10, ibid

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Cohen vs. Motor Image
Comment
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3. To prove the absence of a cause of action, petitioners alluded

to the proper interpretation of documents and admission of certain facts
to show that the warranty was voided and the lack of any connection to
petitioner Arcinas. To show that the 3-year warranty has prescribed,
petitioners depart from jurisprudence and stubbornly cite an old and
inapplicable law. Finally, to prove violation of Bar Matter 1922,
petitioner blindly parrots a provision but fails to grasp the spirit and
purpose of the Rule.

4. In resolving petitioner's motion for a preliminary hearing of

its special and affirmative defenses (to dismiss the case), the Honorable
Court issued the assailed resolution to wit;
11
TI1e motion lacks merit.

TI1e motion raises a myriad of issues which should be

properly addressed on presentation of evidence by
both parties. They are evidentiary matters which are
better resolved in the main rather than in preliminary
hearings (Order dated 25 February 2014)"

5. The undersigned is surprised with petitioners' audacity to

cast aspersions on the integrity and wisdom of public respondent with
their sheer ignorance. Such is evident because the issues raised are basic
legal principles that should be known even to law students.

On the absence of a cause of

action: Petitioners' admission
that it exists.

6. T e ge�eral rule is: a cause of action exists if the facts alleged

. the compl �
m amt will enable the court to render judgment in accordance
to �� prayer (Dulay vs. CA, G.R. 10817, April 3, 1995). The mome�t
petiti�ner started to argue against the allegations of the complaint by
refernng to its own interpretation of contracts and facts, sealed the fate
on the existence of complainant's cause of action. Such is the
jurisprudence laid by the Supreme Court in the case of D.C. Crystal vs.
Laya (170 SCRA 734) to wit;
,,.
(It) is axiomatic that a defendant moving to dismiss a
complaint on this ground (lack of cause of action) is
 Cohen vs. Motor Image
Comment
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-3-
'•<11,-r:

regarded as having admitted all the aver�e�ts thereof

at least hypothetically, the test of th� sufficiency of the
facts found in a petition, as constztutz�g a cause of
_
action, being whether or not, admzttzng the facts
alleged, the court could ren1er a valid judgment u�on
the same in accordance wzth the prayer thereof In
determining the sufficiency of the statements in the
complaint as setting forth a cause of action, 5 only
those statements in the complaint, to repeat,
1nay properly be considered, and it is error for
the Court to take cognizance of external facts, or
hold a preliminary hearing to determine their
existence. 6 The respondent Court therefore acted
j�I,\•
"
correctly in denying the motion to dismiss and
refusing to take account of facts asserted by the
defendants which were not only not found in the
complaint but contradictonJ of their hypothetical
admission of the contents thereof

On the fact of prescription:

Petitioner's gross ignorance of
the law.

7. This case is an action for damages resulting from petitioner's

breach of contract (to honor its obligations) and not to enforce a
warranty.

8. The distinction between a cause of action based on breach of

contract and the enforcement of a warranty is crucial because of
petitioner's reliance on the archaic provisions of the civil code that
requires a court action to enforce the 3 year warranty. Given petitioner's
distorted argument, the entire concept of its 3-year warranty is instantly
rendered meaningless because., as exemplified by this case, a proper

-lPaminsan v. Costales, 28 Phil. 487, 489; De Jesus, et al. v. Belarmino, et al., 95 Phil. 365; Worldwide
Insurance & Surety Co., Inc. v. Manuel, 98 Phil. 47; Galeon, L-30380, Feb. 28,1973; Suyom v. Collantes,
L---10337, Feb. 27, 1976.
5The requisites of a cause of action are (1) a legal right of the plaintiff, (2) a correlative obligation of

the defendant, and (3) an act or omission of the defendant in violation of said legal right (Ma-ao
Sugar Central v. Barrios, 79 Phil. 666; Remitere v. Montinola, 16 SCRA 251, 256; Republic Planters
Bank v. I.A.C. 131 SCRA 631
6Heirs of Juliana Clavano v. Genato, C.R. No. L-45837, Oct. 26, 1977; cf. Aranzanzo v. Martinez, L-

3468, April 25, 195 1

 Cohen vs. Motor Image
Comment
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cl aim on warranty, to be binding, will require that a case be filed in

court.

9. Simply put, private respondent is suing petitioners for

damages because they refused to honor their obligations. Such is very
obvious when the complaint also imputed bad faith, misrepresentation
and deceit to claim other forms of damages as well. Hence, the action for
breach of contract prescribes in 10 years in accordance with Article 1144
of the Civil Code.

10. And even if we assume that Article 1144 of the Civil Code
does not apply, the Honorable Court correctly ruled that Art. 67 of RA
7394 or the Consumer Act of the Philippines of 1992, effectively
amended whatever archaic interpretations petitioners had on the
application of Article 1155 of the Civil Code of 1949. Hence, prescripti©n
does not set in as the case was filed in accordance with Article 67 of R.A
7394.

11. In a desperate attempt to stretch the argument of

prescription, petitioners toy with the idea that prescription is not tolled
because the pleading was amended on a later date. To resolve this issue,
petitioners should ask themselves if the amendment of the pleading
deprives the court of jurisdiction as to when it was actually filed.

On the alleged violation of

BAR Matter 1922: An empty
allegation.

12. The undersigned previously apologized for inadvertently

stating his MCLE Compliance No. III -0008370/2-9-2010, when it should
be MCLE Compliance No. IV-0019197/26-4-2013. The inadvertence,
howe �er, does not change the fact that the undersigned has duly
complied and completed his MCLE requirements when the complaint
was signed and filed.

�3. The purpose of BAR Matter 1922, requiring details of MCLE

c�m_Pl:a �ce �o be indicated in all pleadings, was to address the
,,,,,.. dmun1shing mterest of l awyers on the MCLE requirement as observed
by Associate Justice Antonio Eduardo B. Nachura, Chairperson,
1. ,.1,
Committee on Legal Education and Bar Matters.
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Co/1-.1>11 vs. Motor Image

' Comment
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14. This requirement was made to ensure that all members of

the BAR "kept themselves abreast with law and jurisprudence, maintain the
ethics of the profession and enhance the standards of the practice of law".7 As
previously explained, the inadvertence, does not change the fact that the
undersigned has duly complied and completed his MCLE requirements
when the complaint was filed- thus achieving the purpose of BAR
Matter 1922.

Petitioner availed of the wrong

remedy and abused the rules.

15. As a general rule, a denial of the motion to dismiss is an

interlocutory order which cannot be appealed or questioned via a
special civil action for certiorari until final judgment on the merits of the
case is rendered. The correct remedy is to file an answer and interpgse
as defenses the objections raised in his motion to dismiss, proceed to
trial and in case of an adverse decision to appeal (Emergency Loan vs.
CA G.R. No. 129184, February 28, 2001).

16. For knowingly asserting arguments that would shame a law

student, petitioners and their counsel should be sanctioned for this
frivolous pleading that betrays their lack of respect to the rules and
public respondent. The Honorable Judge Myra V. Lim-Verano was right
,,, from the start. "Petitioners' motion lacks merit" _s

PRAYER

WHEREFORE, premises considered, respondent prays that

. .
petitioners ordered to show cause why they should not be cited in
contempt for deliberately abusing the rules and to dismiss the Petition
for the utter lack of merit.

Other reliefs just and equitable are likewise prayed for.

Makati City for Manila: 25 November 2014.

NEVERBUYASUBARU.COM
7 Purpose of BAR Matter 850
80rder dated 25 February 2014