REPUBLIC OF THE PHILIPPINES

REGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION
BRANCH 58, MAKATI CITY

CHEVRON HOLDINGS, INC.

Plaintiff,
CIVIL CASE NO. 140635
- versus - FOR: BREACH OF CONTRACT AND
DAMAGES
RCBC REALTY CORPORATION,
MARVEL CHEST BPO SERVICES
(PHILIPPINES), INC. AND
GRAMONO PROPERTIES AND
DEVELOPMENT
CORPORATION.
x------------------------------------------x

COMMENT/OPPOSITION
TO RCBC REALTY CORPORATION’S MOTION TO DISMISS

Chevron Holdings, Inc., by counsel, respectfully states that:

1. RCBC Realty Corporation moves for the dismissal of the case

on the ground that this Honorable Court did not acquire jurisdiction over its
person. The motion is premised on the ground that the summons issued by
this Honorable Court was not properly served and therefore dismissible
under Section 1, Rule 18 of the Rules of Court.

2. Chevron Holdings, Inc. begs to differ. As will be discussed, this

Honorable Court has validly acquired jurisdiction over the person of the
RCBC Realty. In truth, the fault lies with RCBC Realty for the unjustified
refusal of its President, Mr. Medel T. Nera, to personally receive the
Summons despite being present at the time the process server appeared at
its principal business address.

1
The Summons were properly
served on RCBC Realty.

A. The address at which

Summons was served on RCBC
Realty is the same address
reflected on its latest General
Information Sheet filed with
the Securities and Exchange
Commission.

3. RCBC Realty asserts that there was improper service of

summons when the Honorable Court’s process server served the Summons
at “RCBC Plaza, 6819 Ayala Avenue, Makati City” RCBC Realty claims that
“RCBC Plaza, the building on the corner of Ayala Ave. and Sen. Gil Puyat is
not RCBC Realty Corporation.”

4. Yet, contrary to this allegation, “RCBC Plaza, 6819 Ayala

Avenue, Makati City” is the exact principal business address indicated in
RCBC’s latest General Information Sheet (GIS) filed with the Securities and
Exchange Commission.1 The GIS is signed by __________________,
Corporate Secretary of RCBC Realty, who declared under penalty of perjury
that all matters set forth therein (including the company’s complete
principal office address and complete business address) have been made in
good faith, duly verified and true and correct.

5. On June 23, 2014, the process server went to RCBC Plaza, 6819
Ayala Avenue, Makati City to personally serve the Summons on RCBC
Realty’s corporate officers as prescribed under Section 11, Rule 14 of the
Rules of Court. Upon inquiry of the process server with the receptionist of
RCBC Plaza about the whereabouts of the corporate officers of RCBC Realty,
he was directed to the 24th floor of the said building. The process server was
then greeted by Ms. Diane Atienza who introduced herself as the Executive
Secretary of RCBC Realty. The process server inquired where the corporate
officers are to personally serve the Summons but he was informed by Ms.
Atienza that all the corporate officers were not around at that time. These
facts are set out in detail on the Officer’s Return dated July 26, 2014. Thus:

1
Attached as Annex A.
2
 OFFICER'S RETURN

THIS IS CERTIFY that on June 23, 2014 I served a copy of

Summons together with the copies of Complaint and its
annexes issued by this Honorable Court in connection with the
above-entitled case upon the following defendants, to wit:

1. RCBC REALTY CORPORATION, RCBC Plaza 6819, Ayala

Avenue, Makati City, the Summons cannot be effected for the
reason that the corporate officers were not around to receive
the Summons personally as per information given by Diane
Atienza, Executive Secretary of the said defendant corporation.

xxx

6. In Guanzon v. Arradaza,2 the Supreme Court held that –

The certificate of service of the process server of the

court a quo is prima facie evidence of the facts as set out
therein. This is fortified by the presumption of regularity of
performance of official duty. To overcome the presumption of
regularity of official functions in favor of such sheriff’s return,
the evidence against it must be clear and convincing. Sans the
requisite quantum of proof to the contrary, the presumption
stands deserving of faith and credit.

7. Apart from RCBC Realty’s bare allegation that “the address

where the Summons was served was not even the address of the Defendant
Corporation,” it did not present any other evidence to rebut the
presumption of regularity on the manner by which the process server
performed his official duty. In fact, corporate documents filed by RCBC
Realty at the SEC belie the company’s contention that “RCBC Plaza 6819,
Ayala Avenue, Makati City” is not its actual address. Accordingly, service of
summons by the process server at said address deserves full faith and credit.

8. Moreover, the fact that the stamp used by Ms. Diane Atienza
in receiving the Summons is “RCBC PLAZA- Property Management Office”
and not RCBC Realty Corporation is of no moment. What is relevant is that
the Summons clearly indicates that RCBC Realty Corporation is a named
2
510 SCRA 309 (2006).
3
defendant, that the process server appeared at the address indicated in
RCBC Realty’s GIS, that he verified that the President was present at said
address, that the President refused to be personally served with the
Summons, that the President instead instructed Ms. Atienza to receive the
summons, and that Ms. Atienza acknowledged receipt of the Summons
with notation that it was upon the direction of the President.

B. An executive secretary
has the semblance of authority
to accept court documents.

9. RCBC asserts that “Ms. Diane Atienza is not a president,

managing partner, general manager, corporate secretary, treasurer, or in-
house counsel of the defendant corporation. It is not even shown that she
is indeed an employee of the Defendant Corporation. Assuming she is an
employee, she has no authority to receive summons and notices on its
behalf. Service of summons on her on behalf of the Corporation is
therefore improper, and hence summons cannot be said to be duly served.”

10. On June 25, 2014, the process server for the second time went
to the office of RCBC Realty to personally serve the Summons. Mr. Medel
T. Nera, the President of the Defendant Corporation was present in his
office as per the information given by Ms. Diane Atienza, but refused to
personally face the process server to receive the Summons. Instead, he
instructed Ms. Diane Atienza, his Executive Secretary to receive the
Summons, the Complaint and its annexes intended for Defendant
Corporation.

11. Before serving the Summons, the process server inquired into
the authority of Ms. Diane Atienza to receive the Summons. After
ascertaining that Ms. Diane Atienza is a competent person, working at the
Defendant Corporation’s office and relying on the representation made by
Ms. Diane Atienza, the process server served the summons to her. As proof
of such authority, Ms. Diane Atienza acknowledges the receipt of the
Summons as shown by her signature on the Original Summons with a
remark “Upon the instruction of Mr. Medel Nera (Pres.) of the
Corporation.” Thus:

OFFICER'S RETURN

xxx
4
 While, on June 25, 2014 the undersigned went again at
the defendant RCBC Realty Corporation to serve a copy of
Summons at its given address. Medez Nera, the President of
this defendant corporation was present in his office as per
information given by Diane Atienza, Executive Secretary
thereat. Later on, Mr. Medez Nera, the corporation President
instructed Diane Atienza ‘to receive the Summons, Complaint
and its annexes intended for the corporation. Diane Atienza
who received the Summons, Complaint and its annexes, is a
competent person, working at the said defendant's office or
the regular place of business who is duly authorized to receive
the process of this nature. She acknowledged receipt thereof
as shown by her signature at the original copy of Summons in
which she wrote thereon a remark “Upon instruction of Mr.
Medez Nera (Pres.) of the corporation”.

xxx

12. The Supreme Court in Guanzon emphasized that the person

receiving summons need not be specifically authorized to do so. It is
enough that he or she is apparently in charge of the regular place of
business. Thus:

Substituted service is valid service expressly authorized

by the Rules. It is allowed when the defendant cannot be
served personally within a reasonable time, in which event,
service may be effected by leaving copies of the summons at
defendant’s dwelling house or residence with some person of
suitable age and discretion then residing therein, or at his
office or regular place of business with some competent
person in charge thereof. It is not necessary that the person
in charge of the defendant’s regular place of business be
specifically authorized to receive the summons. It is enough
that he appears to be in charge.

13. In Gentle Supreme Philippines, Inc. v. Consulta,3 the Supreme

Court reiterated that specific authority is unnecessary to vest a person with
the power to accept court documents. More importantly, the Court
expressly ruled that a secretary possesses the semblance of authority to
accept court documents. Thus:
3
629 SCRA 745 (2010).
5
 Further, this Court ruled that “it is not necessary that the
person in charge of the defendant’s regular place of business
be specifically authorized to receive the summons. It is
enough that he appears to be in charge.” In this case, Canave,
a secretary whose job description necessarily includes
receiving documents and other correspondence, would have
the semblance of authority to accept the court documents.

14. Evidently, Ms. Atienza was no ordinary secretary, but uses the
more senior designation of “Executive Secretary.” Whereas RCBC Realty
attempts to downplay her role by alleging that “[a] mere executive
secretary, as in the instant case, will most likely not know the significance of
the summons and the complaint served upon her, and the consequence for
any possible delay or failure in delivering the same to those officers duly
authorized to receive them,” in truth, Ms. Atienza bore all the badges of
being in charge at RCBC Realty’s place of business.

14.1 On June 23, 2014, Ms. Atienza introduced herself to the

process server as the Executive Secretary of RCBC Realty.

14.2 In her capacity as Executive Secretary, Ms. Atienza

informed the process server that none of the officers were
present to personally receive Summons on June 23, 2014.

14.3 When the process server returned to RCBC Realty on

June 25, 2014, Ms. Atienza informed him that the President was
present at the office premises.

14.4 Ms. Atienza told the process server that the President of
RCBC Realty instructed her to receive the Summons.

14.5 Ms. Atienza acknowledged receipt of the Summons and

noted on the Officer’s Return that it was upon instruction of the
President.

14.6 Cognizant of the significance of the Summons, Ms.

Atienza timely delivered the same to the President which enabled
counsel to file the Motion to Dismiss on _____________.

15. As can be seen from the Officer’s Return, the process server
proceeded to RCBC Realty’s principal business address as disclosed in its GIS

6
and exerted diligent efforts to personally serve the Summons to the
President, a corporate officer listed under Section 11, Rule 14 of the Rules of
Court. Unfortunately, the President, without just cause, flouted this
Honorable Court’s jurisdiction and refused to entertain the process server.
Instead, the President chose to clothe Ms. Atienza with authority to accept
the Summons upon his instruction.

16. The constitutional requirement of due process exacts that the

service be such as may be reasonably expected to give the notice required.
Once the service provided by the rules reasonably accomplishes that end,
the requirement of justice is answered; the traditional notions of fair play
are satisfied and due process is served. 4 It is true that this Court
emphasized the importance of strict and faithful compliance in effecting
substituted service. It must, however, be reiterated that when the rigid
application of rules becomes a conduit for escaping one’s responsibility, the
Court will intervene to set things rights according to the rules. 5

17. Under these premises, this Honorable Court should not allow
the complaint to be dismissed on the ground that the process server failed
to personally hand over the summons to the President when clearly it was
the President’s own acts that prevented the process server from doing so.
Worse, no cogent reason was offered to warrant the President’s refusal to
personally receive the Summons despite being present at RCBC Realty’s
offices at the time the process server attempted to effect personal service.

The Motion to Dismiss is filed

as a dilatory tactic.

18. This Honorable Court’s Process Server, Mr. Jaime A. Juego, was
clearly aware of the procedure to effect a proper service of summons. His
first attempt on June 23, 2014 was by personal service but was unsuccessful
because he was told that none of the corporate officers were present at
RCBC Realty’s place of business. He returned to RCBC Realty’s offices on
June 25, 2014 to again attempt personal service. Although the President
was there, he did not face Mr. Juego. Mr. Juego was therefore constrained
to serve Summons on Ms. Atienza on the basis of her apparent authority as

4
Guanzon v. Arradaza, 510 SCRA 309 (2006).
5
Gentle Supreme Philippines, Inc. v. Consulta, 629 SCRA 745 (2010).
7
the person in charge and on the express written declaration that she
received the same upon instruction of the President.

19. The Supreme Court has held that “the refusal of a defendant…
to receive the summons is a technicality resorted to in an apparent attempt
to frustrate the ends of justice.”6 Actions that undermine its jurisdiction and
delay the proper service of summons must not be countenanced by this
Honorable Court. This being said, RCBC Realty ought to be barred from
questioning the propriety of the service of summons when in fact, the very
flaws that it now raises can be attributed to the acts of its own officers, and
by its President no less.

20. In any event, the Supreme Court has ruled that a case should
not be dismissed simply because an original summons was wrongfully
served, as it is difficult to conceive that where a defendant appears before
the court complaining that he had not been validly summoned, the case
against him would be dismissed. An alias summons can be actually served
on such defendant.7

PRAYER

WHEREFORE, premises considered, Chevron Holdings, Inc. respectfully

prays that this Honorable Court deny the Motion to Dismiss for lack of
merit; or, in the alternative, that this Honorable Court issue an Order
directing that Alias Summons be served on RCBC Realty Corporation.

Makati City, August 1, 2014.

PLATON MARTINEZ FLORES

SAN PEDRO AND LEAÑO
Counsel for the Plaintiff Chevron Holdings, Inc.
6th Floor Tuscan Building
114 V.A. Rufino Street, Legaspi Village
Makati City, Metro Manila
Telephone No. 867-4696 or 867-4698
Fax No. 867-1304
Email: counsel@platonmartinez.com

6
Navale v. Court of Appeals, G.R. No. 109957, February 20, 1996.
7
Far Corporation v. Francisco, 146 SCRA 197 (1986).
8
By:

PETER M. BANTILAN
PTR No. 4224499; 01/02/2014; Makati City
IBP No.925307; 01/02/2014; Makati Chapter
Roll No. 37679
MCLE No. IV-0008211 09/27/2012

MIA CARISSA C. MARTIN

PTR No.4229202; 01/02/2014; Makati City
IBP No.925311; 01/02/2014; Makati Chapter
Roll No. 46302
MCLE No. IV-0004668, 02/23/2013

FELIX CONRAD B. REYES

PTR No.4229211; 01/02/2014; Makati City
IBP No.925317; 01/02/2014; Makati Chapter
Roll No. 59685; 04/19/2011
MCLE No. IV-0010828 12/27/2012
LUCKY ANGELO T. ARANAS
PTR No.9229210; 01/02/2014; Makati City
IBP No.925318; 01/02/2014; Oriental
Mindoro Chapter
Roll No. 59586; 04/19/2011
MCLE No. IV-0010781, 12/27/2012