REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION
QUEZONCITY
Branch _____

APPLEBEE REALTY MANAGEMENT,

INC. represented by JEROME M.
TANG,
Plaintiff,

-versus- Civil Case No. _______________

CHRISTIAN BARRIENTOS, A.K.A.

KENNY TSAI,
Defendant.

x-----------------------------------------------------------------------------------------x

COMPLAINT

Plaintiff, by counsel, respectfully states:

1. It is a corporation organized and existing under Philippine laws with

office at 967 Mesa Building, San Francisco Del Monte, Quezon City. It is
represented by its President, Jerome M. Tang (“Tang”).

Copies of plaintiff’s Articles of Incorporation (AOI) and Secretary’s

Certificate showing the authority of Tang to represent plaintiff are attached as
Annexes A and B, respectively. It may be served with summons and other court
processes at the undersigned’s address.

2. Defendant is a Filipino, of legal age, with address at 2nd Floor, No. 190
D. Tuazon Street, Sta. Mesa Heights, Quezon City, where he may be served with
summons and other court processes.

Allegations Common to All Causes of Action

3. Plaintiff is engaged in the business of sub-leasing commercial spaces

at Plaza Lorenzo Building in Binondo, Manila (the “Building”).

4. Defendant, on the other hand, does business in the name of

COMFORD COMMERCIAL. On 5 June 2015, he decided to enter into two (2) Sub-
lease Contracts (the “Contracts”) with the plaintiff from 15 July 2015 to 31
December 2016 for the following portions of the Building (the “Leased
Premises”):

a. One Hundred Thirty Square Meters (130 sq.m.), more or less, of

the first floor of the Building at a rental rate of Seventy Thousand
Pesos (P70,000) per month; and

b. Two Hundred Fifty Square Meters (250 sq.m.), more or less, of the
second floor of the Building at a rental rate of One Hundred Eighty
Thousand Pesos (P180,000) per month;

Copies of these Contracts are attached as Annexes C and C-1, respectively.

5. Clause 3, par. 2 of the Contracts required defendant to:

Upon the signing of this Contract, the SUB-LESSEEE shall

hereby pay and issue in advance the post dated checks
covered the rental rate for sub-lease period subject to
Clause 3 on Advance Rentals.

6. Defendant also agreed to make a security deposit and advance rental

under Clause 5 of the Contracts which states:

The SUB-LESSEE hereby agrees to deposit the amount

equivalent to two (2) months’ rental ***1 upon signing
of this Contract.

The SUB-LESSOR shall return the said amount to the

SUB-LESSEE without interest, at the end of the Sub-
Lease after deducting whatever amount might then be
owing to the SUB-LESSOR for utilities and damages.

Likewise, a two (2) months’ advance rental is also

required to be deposited upon the signing of this
Contract and applicable as payment for the last two (2)
months’ rental of the sub-lease period.

7. Upon the signing of the Contracts, defendant issued several post-

dated checks for the plaintiff, among which are the eight (8) post-dated checks
(“Subject Checks”) listed below:

Date UCPB Check Nos. Amount

15 August 2016 007086764 P 70,000.00

1 One Hundred Forty Thousand Pesos (P140,000) for the first floor and Three Hundred
and Sixty Thousand Pesos (P360,000) for the second floor of the Building

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 007086781 180,000.00
15 September 2016 007086765 70,000.00
007086782 180,000.00
15 October 2016 007086766 70,000.00
007086783 180,000.00
15 November 2016 007086767 70,000.00
007086784 180,000.00
Total P 1,000,000.00

Copies of these Subject Checks are attached as Annexes D to D-4,

respectively.

8. From the onset of these Contracts, defendant is guilty of pure bad

faith and fraud when, without any justifiable reason, failed to deliver the post-
dated checks for the rental period of July 15, 2015 to August 15, 2016 and
November 16, 2016 to December 31, 2016 despite his conformity to the
Contracts, specifically Clause 3, par. 2 thereof.

9. Although the aggregate rent for these periods already amounted to

Three Hundred Seventy Five Thousand Pesos (P375,000), plaintiff received the
other checks trusting that defendant will pay the rent when it falls due.

Copies of the Acknowledgement Receipts are attached to the Contracts

themselves, attached herein as Annexes C and C-1.

10. On 10 June 2015, at the behest of the defendant, plaintiff agreed to

amend the signed Contracts by removing the two (2) months advance rental
required under Clause 5, par. 3.

11. Both parties also agreed that:

As further agreed, the UCPB Check No. 7086751 dated

July 15, 2015 in the amount of P140,000 you issued for
the purpose of satisfying the advance rental previously
required under the subject contract will be deposited on
July 15, 2015 in place of the first July 2015) and last
(December 2016) month’s rent for which no checks were
issued to and received by Applebee Realty Management
Inc. from you.

A copy of the 10 June 2015 letter confirmation of the said amendment is

attached to the Contracts themselves, attached herein as Annexes C and C-1.

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 12. Thus, all the post-dated checks issued and delivered by defendant
were to stand as payment only for monthly rent and as security deposit.

13. On 30 July 2015, defendant again requested for the amendment of

the Contracts. This time, to shorten the term of the Contracts and delay its
commencement to 01 August 2015, instead of 15 July 2015.

A copy of the 30 July 2015 letter confirmation of the said amendment is

attached to the Contracts themselves, attached herein as Annexes C and C-1.

14. Plaintiff accommodated defendant for the third time, despite the fact
that the Contracts have already been signed and executed for almost two (2)
months already.

15. It must be noted that the post-dated checks issued by the defendant
upon the signing of the Contracts coincide with his subsequent requests to
remove the advance rental and shorten the period to fifteen (15) days. It is as if
he planned to avoid payment of the advance rentals and the fifteen (15) day
period even before the execution of the Contracts.

16. Starting August 2016, defendant, with malice and ill-will, ordered the
Stop Payment on the Subject Checks.

17. According to the defendant himself, he did this to ensure that he

would get back his security deposit because he does not plan to renew the sub-
lease with the plaintiff.

18. On the 30 July 2015 letter, plaintiff reminded him that he should
remove the staircase he introduced and return the Leased Premises in its original
condition upon termination of the Contracts. On said letter, defendant agreed
that should plaintiff be forced to do such works, the cost of which shall be
deducted to his security deposit.

19. As such, knowing that defendant will not get the full amount of his
security deposit, he opted, with bad faith, to deprive plaintiff of what is due to it.

20. In view of this, plaintiff caused the sending of Notices to Vacate and
Pay to defendant on three (3) different occasions.

Copies of the 23 August 2016, 28 September 2016, and 4 November 2016

notices are attached as Annexes D to D-2, respectively.

21. But these notices fell on deaf ears.

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 22. Defendant is clearly guilty of fraud in the performance of the
obligation. Defendant became committed not to pay plaintiff his rents despite the
fact that he is still using the Leased Premises during those months.

23. On 23 May 2017, plaintiff caused a final demand for payment within
five (5) banking days against defendant. Defendant after personally receiving this
final demand immediately read the same.

A copy of the Affidavit of Service is attached as Annex E.

24. Thereafter, plaintiff’s lawyers also caused the sending of the final
demand by registered mail and private courier.

A copy of the final demand with attached registry and official receipts is
attached as Annex F.

25. Instead of paying or making arrangements for payment, defendant

caused his lawyers to send a response denying any unpaid rental obligations to
the plaintiff.

26. Defendant, with malice, has no intention of paying for his rental
arrears. He even denied his identity just to escape liability. As a result, plaintiff
caused the filing of the Complaint-Affidavit against the defendant for violation of
Batas Pambansa Blg. 22 (BP 22) on 04 August 2017 before the Office of the City
Prosecutor of Quezon City.

27. Defendant also ignored the Subpoena issued by Assistant City

Prosecutor Joselito C. Bacolor (ACP Bacolor) dated 05 October 2017 and 12
October 2017 and failed to appear. This is despite the fact that ACP Bacolor
waited for him on both occasions.

28. In effect, the case was deemed submitted for resolution. On 16 May
2018, ACP Bacolor issued a Resolution dismissing the complaint for violation of BP
22 due to the fact that the reason of dishonor was for “Stop Payment,” and not
for insufficiency of funds.

29. The Resolution, however, was silent as to the civil liability of the
defendant.

A copy of the Resolution is attached as Annex G.

30. The fact that ACP Bacolor found that the checks of the defendant
were sufficiently funded but he still ordered the bank to stop its payment clearly
shows that defendant just does not want to pay rent to the plaintiff.

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 31. As planned, defendant continues to completely and unreasonably
ignore plaintiff’s demand to pay his rental arrears causing damage and prejudice
to the latter.

First Cause of Action

32. The foregoing allegations are repleaded by reference.

33. Defendant committed a substantial breach of contract when it

unreasonably refused to pay his rent from August to December 2016. Plaintiff
complied with its obligation when it surrendered its possession over the Leased
Premises in a condition fit for commercial use in favor of the defendant.

34. Even after defendant refused to pay his rent starting August 2016,
plaintiff did not disturb defendant’s possession until ______________. It is now
incumbent upon defendant to pay his rental obligations without any delay.

35. Breach of contract is committed when a party fails without legal

reason to perform a promise, which forms part of the contract.2 Because of
defendant’s breach of its obligation, it is liable to pay damages under Article 1170
of the Civil Code.3

36. Defendant breached its contract when it failed to observe its

obligation under Clause 3 of the Contracts. While it is true that he already
delivered post-dated checks upon the signing of the Contracts, as required under
said Clause, he ordered the “STOP PAYMENT” of these post-dated checks and
blatantly refused to replace the dishonored checks or to even make arrangements
for its payment despite several notices and demands.

37. Moreover, the transactions made between plaintiff and defendant

constitute contracts of lease. Article 1657 of the Civil Code expressly requires the
defendant as lessee to pay the price of the lease according to the terms stipulated
in the Contracts.

38. Defendant enjoyed the use of the Leased Premises from August 2016
to ___________. He also earned conducting his business on the Leased Premises
but refused to pay rent to plaintiff.

39. Plaintiff should not be prejudiced by defendant’s unwarranted denial

to give what is due to it. Plaintiff has no recourse but to institute an action against
the defendant. Article 1659 states:

2
Nakpil vs. Manila Towers Development Corporation, G.R. No. 160867 & 160886, September 20, 2006.
3
Article 1170. Those who in the performance of their obligations are guilty of fraud, negligence, or delay
and those who in any manner contravene the tenor thereof, are liable for damages.

6
 Art. 1659. If the lessor or the lessee should not comply
with the obligations set forth in Articles 1654 and 1657,
the aggrieved party may ask for the rescission of the
contract and indemnification for damages, or only the
latter, allowing the contract to remain in force. (1556)

40. In view of defendant’s unjustified refusal to pay its obligation,

plaintiff suffered damages. Defendant should be held liable for actual damages
amounting to P1,000,000.

Second Cause of Action

41. The foregoing allegations are repleaded by reference.

42. Under Article 1956 of the Civil Code, no interest shall be due unless it
has been expressly stipulated in writing. Clause 19, par 1 of the Contracts provide:

In case of default by the SUB-LESSEE to pay monthly

rental on due dates or to fund the postdated checks
issued *** and no remedy is made by SUB-LESSEE within
ten (10) working days from receipt of written notice of
such default or breach, this Contract shall be terminated
and rendered without further force and effect at the
option of the SUB-LESSOR, and the SUB-LESSOR, shall
have the right to eject the SUB-LESSEE from the
premises and recover all amounts due as rentals and
interest thereon at the rate of two (2%) percent per
month from the date of default until full payment.
(emphasis supplied)

43. Parties are free to stipulate any terms and conditions in its contracts
as long as they are not contrary to law, moral or good customs.4 Consequently,
Clause 19 of the Contracts is valid and binding.

44. To plaintiff’s prejudice, defendant unjustly refused to pay rent since

August 2016.

45. Defendant should be held liable for monthly interest of 2% on his

rental arrears until full payment thereof.

Third Cause of Action

46. The foregoing allegations are repleaded by reference.

4
Article 1306 of the Civil Code.

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 47. Clause 19, par. 1, last sentence states:

Likewise, the rental remaining for the sub-lease period,

the deposit and advance rental will be forfeited in favor
of SUB-LESSOR as liquidated damages.

48. Article 2226 of the Civil Code expressly allows the inclusion of the
payment of liquidated damages in a contract in case of breach thereof. The
Supreme Court in Atlantic Erectors, Inc. vs. Court of Appeals and Herbal Cove
Realty Corporation,5 further explained that stipulation for liquidated damages is
made to ensure performance.

It is attached to an obligation in order to ensure

performance and has a double function: (1) to provide
for liquidated damages, and (2) to strengthen the
coercive force of the obligation by the threat of greater
responsibility in the event of breach.

49. As such, defendant should be held liable for liquidated damages

amounting to P500,000, the amount equivalent to the security deposit.

Fourth Cause of Action

50. The foregoing allegations are repleaded by reference.

51. In view of defendant’s unjustified refusal to comply with plaintiff’s

valid, demandable, just and lawful claim, plaintiff was constrained to hire the
services of counsel to protect its interests and to go through legal processes to
enforce its rights.

52. Clause 19, par. 2 provides:

In addition thereto, the SUB-LESSEE shall be liable for

attorney’s fees in the amount equivalent to ten percent
(10%) of such amount due, but shall in no case be less
than ONE HUNDRED THOUSAND PESOS (P100,000.00)
should it be necessary for the SUB-LESSOR to enforce
this Contract, or any part thereof, judicially or
extrajudicially.

53. To reiterate, Article 1306 of the Civil Code expressly allows parties to
agree on stipulations and terms as they may deem convenient, provided they are
not contrary to law, morals, good customs, public order, or public policy.
Consequently, Clause 19 of the Contracts is valid and binding.

5
G.R. No. 170732, October 11, 2012.

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 54. As such, defendant should be held liable for attorney’s fees
equivalent to ten percent (10%) of his unpaid rental obligation.

Allegations in Support for Application for the

Issuance of a Writ of Preliminary Attachment

55. The foregoing allegations are repleaded by reference.

56. It is clear that a sufficient cause of action exists against the

defendant. Defendant continued to enjoy possession of the Leased Premises
during the term of the Contracts but it still refused to pay for the same.

57. Defendant is guilty of fraud and was in bad faith when he made the
plaintiff believed that he is willing to pay for rent when he delivered the post-
dated checks when he at the onset planned to stop its payment for the last four
(4) months and never bothered paying for it.

58. The fact of fraud is evident on the foregoing facts: (a) the post-dated
checks delivered simultaneously with the signing of the Contracts were
incomplete; (b) he eventually negotiated to remove the advance rental
requirement; (c) again asked for the amendment of the term and shorten it to
fifteen (15) days to match the amount he issued on the checks; (d) defendant
purposely ordered the STOP PAYMENT of his last four (4) checks to ensure that his
whole security deposit will be returned despite the fact that major works are
needed to be done at the Leased Premises after the termination of the Contracts;
and (e) he ignored all the demands of the plaintiff including the subpoenas of ACP
Bacolor.

59. Defendant is guilty of fraud in the performance of his obligation by

maliciously misrepresenting and giving assurance that he would pay his rent by
delivering post-dated checks, only to find out later that such assurances were
tainted with deception when he purposely ordered the STOP PAYMENT of the
checks to entice the plaintiff to return the security deposit despite the works to
be done in the Leased Premises.

A copy of the Affidavit of Preliminary Attachment of Tang is attached as

Annex H.

60. Section 1 of Rule 57 of the Rules of Court of the Civil Procedure

provides the grounds when a Writ of Preliminary Attachment may properly issue,
as in this case, specifically Section 1(d).

Section 1. Ground upon which attachment may issue. –

At the commencement of the action or at any time
before entry of judgment, a plaintiff or any proper party

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 may have the property of the adverse party attached as
security for the satisfaction of any judgment that may be
recovered in the following:

(d) In an action against a party who has been guilty of

fraud in contracting the debt or incurring the obligation
upon which the action is brought, or in performance
thereof.

61. Fraud, in its general sense, is deemed to comprise anything

calculated to deceive, including all acts, omissions and concealment involving a
breach of legal or equitable duty, trust or confidence justly reposed, resulting in
damage to another; or by which another is unduly and unconscientiously taken
advantage of another. It is a generic term embracing all multifarious means which
human ingenuity can device, and which are resorted to by one individual to
secure an advantage over another by false suggestions or by suppression of truth;
and includes all forms of surprise, trick, cunning, dissembling and any other unfair
way of which another is cheated.6

62. Defendant’s evident bad faith and intention to defraud the plaintiff
can further be deduced in their continued failure to settle his outstanding
obligations. It should be noted that plaintiff afforded the defendant several
occasions to settle their obligation, as seen by several demand letters sent by
plaintiff to defendant, but defendant just ignored it.

63. This action for sum of money is based upon genuine documents,
therefore, a sufficient cause of action exists owing to defendant’s failure to settle
its contractual obligation.

64. Moreover, the obligation of defendant is unsecured and there is no

other form of sufficient security for the claims sought to be enforced by the
present action.

65. Plaintiff is ready, willing and able to post a bond in an amount to be

fixed by the Honorable Court in favor of the defendant to answer for any and all
costs and damages that defendant may sustain by reason of the attachment
prayed for, if the Honorable Court shall finally adjudge that plaintiff is not entitled
to the relief sought.

66. In support of the foregoing allegations, plaintiff has executed a

Judicial Affidavit, a copy of which is attached herein as Annex I.

RELIEFS

6
Uy vs. People of the Philippines, G.R. No. 174899, September 11, 2008, citing Sim, Jr. vs. Court of Appeals, G.R.
No. 159280, May 18, 2004.

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 WHEREFORE, it is respectfully prayed that:

1. At the commencement of the action and upon filing of a bond, as may be

reasonably set by this Honorable Court, a writ of preliminary attachment be
issued ex parte requiring the sheriff or proper officer of Quezon City, to
attach all the properties of the defendant pursuant to Rule 57 of the 1997
Rules of Civil Procedure, found within their respective jurisdiction, which
are not exempt from execution, or so much thereof as may be sufficient to
satisfy plaintiff’s demand which amounts to P1,500,000, excluding the
interests and attorney’s fees.

2. After hearing, judgment be rendered in favor of plaintiff and against

defendant, ordering defendant to pay plaintiff:

a. P1,000,000 as actual damages;

b. 2% monthly interest from the time of plaintiff’s extrajudicial demand;

c. P500,000 as liquidated damages;

d. 10% of the total amount due as attorney’s fees; and

e. Costs of suit.

Other equitable reliefs are also prayed for.

Quezon City, November ___, 2018.

HO & UY LAW FIRM

Counsel for the Plaintiff
209 Roosevelt Avenue
San Francisco Del Monte, Quezon City
Telephone No. (632)373-3215
Email: attorneys@houylaw.com

By:

MARIA KRISTILE Y. LOZADA

PTR No. 5566106; 01-04-2018; Quezon City
IBP No. 024714; 01-09-2018; PPLM Chapter
Roll of Attorneys No. 62314
MCLE Compliance Certificate No. V-0002538; 05-30-2014

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 VERIFICATION AND CERTIFICATION

I, JEROME M. TANG, Filipino, of legal age, and with office address at 967
Mesa Building, San Francisco Del Monte, Quezon City, subscribing under oath,
depose and state:

1. I am the President of Applebee Realty Management, Inc. and the duly

authorized representative of the plaintiff in this suit, as evidenced by the
Secretary’s Certificate attached hereto.

2. I have caused the preparation of the foregoing Complaint with

Application for the Issuance of a Writ of Attachment;

3. I have read and understood all the allegations therein which are true
and correct of my own personal knowledge and based on available authentic
records;

4. I have not heretofore commenced any action or filed any claim

involving the same or similar issues in any court, tribunal or quasi-judicial agency
except for the violation of the Batas Pambansa Blg. 22 before the Office of the
City Prosecutor of Quezon City and to the best of my knowledge, no such other
action or claim is pending therein, to the Court of Appeals or the Supreme Court;
and if there is such other action or claim pending in any court, tribunal, or quasi-
judicial agency, I will provide this Honorable Office with a complete statement of
the present status thereof; and if I should thereafter learn that the same or
similar action or claim has been foiled or is pending, I shall report to the court the
fact within five (5) days from knowledge thereof.

JEROME M. TANG

SUBSCRIBED AND SWORN to before me this ___th day of November 2018,

affiant, exhibited to me his __________________ valid until _______________.

Doc. No. _____;

Page No. _____;
Book No. ____;
Series of 2018.

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