NMG - 20200311 - Sabeniano VS Ritz - Motion To Dismiss - Draft
NMG - 20200311 - Sabeniano VS Ritz - Motion To Dismiss - Draft
MODESTA R. SABENIANO,
Plaintiff,
Civil Case No.
- versus - R-MKT-20-00787-CV
MOTION TO DISMISS
PREFATORY STATEMENT
“It is said that a little learning is a dangerous thing; and that he who
acts as his own lawyer has a fool for a client. There would seem to be more
than a grain of truth in these aphorisms; and they appear to find validation in
the proceeding at bench, at least” (In Re: Joaquin T. Borromeo, Ex. Rel.
Cebu City Chapter of the Integrated Bar of the Philippines, A.M. No. 93-
7-696-0, 21 February 1995).
1
Sps. Cruz v. Sps. Caraos, G.R. NO. 138208, 23 April 2007, 521 SCRA 510.
2
Annex “1___”, with attachments.
ii. “Modesta R. Sabeniano v. Daniel Gomez Jr., Stewart
Chongson, Ancheta Tan, Vicente Quimbo, Vicente
Villegas, David Wheeler, Jenny Paradise and Leslie
James Croyston”, HLURB Case No. NCRHOA –
101812-1749;
3
Araneta v. Araneta, G.R. No. 190814, 9 October 2013, 707 SCRA 222, citing Luis Ao-As v. Court of Appeals, G.R.
No. 128464, 20 June 2006, 491 SCRA 339
4
Heirs of Sotto v. Palicte, G.R. No. 159691, 13 June 2013, 698 SCRA 294
Modesta R. Sabeniano, and defendants therein are members of the Board of
RTCAI, its former president/s.
ii. Dismiss the alleged water charges and its interest for
lack of merit and/or without due process of law, in violation
of R.A. 4726 and jurisprudence rendering them null and void
and of no legal effect;
iii. Declare the cut off of the water to Unit 901A supply
ordered by respondents in violation of R.A. 4726 and/or in
violation of the constitutional right to due process of
complainant and members of her household rendering it null
and void and of no legal effect whatsoever and
“_______________________________________”“
WHEREFORE, the complaint is hereby DISMISSED for
violation of Section 5, Rule 7 or the RFules of Court in
relation to Section 4 of the Rule II of the Interim Rules of
Procedure for Intra-Corporate Controversies
SO ORDERED”
14
Annex “F” of Plaintiff’s “Urgent Motion and Manifestation with Injunction to Grant the Immediate Reconnection of
the Ten (10) Months Disconnected Water Supply and the Removal of all the Liens on the Condominium Title No. 91072 of
Unit 901A Ritz Towers, Ayala Avenue, Makati City, Done by the RTCAI.”
15
Annex “51”.
complaint shall be entertained by the Court.” (emphasis
supplied)
16
Annex “62”.
17
Attached as the last Annex to Plaintiff’s “Urgent Motion and Manifestation with Injunction to Grant the Immediate
Reconnection of the Ten (10) Months Disconnected Water Supply and the Removal of all the Liens on the Condominium Title
No. 91072 of Unit 901A Ritz Towers, Ayala Avenue, Makati City, Done by the RTCAI.”
18
Unmarked Annex after Annex “G-2” of Plaintiff’s pleading.
12. Since the Hon. Judge Soriano refused to grant due course to her
“Urgent Supplemental Manifestation and Iteration with Injunction of
Earlier Motion to Reconnect Water Supply and the Removal of All the
Liens on the Condominium Title No. 91072 of Unit 901A Ritz Towers”, the
Plaintiff resorted to forum-shopping (yet again) and initiated a new case with
this Honorable Regional Trial Court Branch 150, instead of appealing the
contested decision of RTC 148 with the Court of Appeals.
14. Moreover, the cited Rule 7, Section 5 likewise states, “If the
acts of the party or his counsel clearly constitute willful and deliberate
forum shopping, the same shall be ground for summary dismissal with
prejudice and shall constitute DIRECT CONTEMPT, as well as a cause
for administrative sanctions.” (emphasis supplied).
19
A copy of the Order dated 23 August 2013 is attached as Annex “22” of defendants’ Answer.
20
A copy of the Order dated 24 September 2012 is attached as Annex “15” of defendants’ Answer.
Third Adjudicated Case
b. Again, the above reliefs sought are exactly the same as the
principal reliefs sought in the instant Complaint. The above
case was dismissed by the RTC-Makati Branch 149 for “lack of
cause of action” in its Order dated 30 October 2015.21
21
A copy of the Order dated 30 October 2015 is attached as Annex “34” of defendants’ Answer.
comply with the rule requiring certification against forum-shopping, as
previously stated.
19. Res Judicata applies when four (4) essential requisites are
present: (1) the former judgement or order must be final; (2) it must be a
judgment or order on the merits; (3) it must have been rendered by a court
having jurisdiction over the subject matter and the parties; and (4) there must
be, between the first and second actions, identity of parties, subject matter
and causes of action.
22
G.R. No. 113349, 18 January 1996, 252 SCRA 28 as cited in Chingkoe v. Republic G.R. No. 183608, 31 July 2013 702
SCRA 677
Second, said judgments were adjudication on the
merits;
25. The rule on real parties in interest has two (2) requirements,
namely: (a) to institute an action, the plaintiff must be the real party in
23
See Rayo v. Metrobank, 539 SCRA 571, 579
interest; and (b) the action must be prosecuted in the name of the real party
in interest. Interest within the meaning of the Rules of Court means material
interest or an interest in issue to be affected by the decree or judgment of the
case, as distinguished from mere curiosity about the question involved. One
having no material interest cannot invoke the jurisdiction of the court as the
plaintiff in an action. When the plaintiff is not the real party in interest, the
case is dismissible on the ground of lack of cause of action.24
27. In all these cases, including the instant case, plaintiff made
it appear that she filed the Complaint/s as owner of the condominium
Unit 901-A. Nevertheless, a recent review of the records of RTCAI
would reveal that plaintiff is not the real and registered owner of the
condominium unit 901-A which would entitle her to any cause of action
against the defendants who are members of the board of directors of
RTCAI. Based on the Condominium Certificate of Title 27 No. 91072 of
Condominium Unit A-901 issued by the Registry of Deeds of Makati
City, the registered owner of the said condominium unit are Spouses
Niles S. Tanakatsubo and Myriam S. Tanakatsubo.
29. In this regard, the following provisions will explain that unit
ownership comes with it the membership in the Association.
31.
32.
33. D. Plaintiff, Who Appeared To Reside Abroad During Most
Of The Time Material To This Case, And Not In Ritz, Has No Right To
Be Protected Insofar As The Restoration Of The Water Supply Sought.
34. ____________________________
35.
36. Plaintiff appears to have resided abroad during most of the time
material to the case. While Plaintiff’s unit may not have direct access to
water supply, Plaintiff is not, in any way, inconvenienced, damaged or
injured because she was not residing in the Philippines during most of the
time material to the cases mentioned above. In fact, it appears that she has
been actively prosecuting her case titled Sabeniano v. Citibank, N.A., New
York (Case No. 1:2016-cv-01723, Southern District of New York) docketed
with the courts of New York City, USA,32 where one can see from the dates
indicated therein that the plaintiff Modesta Sabeniano has been consistently
filing several “Letters” addressed to the judges of the New York City Courts,
insisting that they act on her Complaint, Amended Complaint, and all other
32
A copy of New York Court Docket Sheet is hereto attached as Annex “5__”. For lack of material time, the undersigned is not able
to secure a certified copy of this document, but merely relied on reports from publicly accessible court docketing systems of the
United States of America Courts.
sorts of motions, which she files by and for herself. It must further be noted
that in the same case, Citibank of North America has already filed a
_______________________________________________________
37. The plaintiff has not only been abusing the leniency of the
courts here in the Philippines, but has likewise been filing numerous
motions, often without basis or merit, such as Inin the abovementioned
Sabeniano v. Citibank case. In fact, based on the online report mentioned
above, the New York Court, on 24 October 2017, already warned the
plaintiff Sabeniano, “Plaintiff Is on notice that any further vexatious filings
or litigation against Defendants may result In a Filing Injuction.” Surely
enough, Citibank of N.A. Filed a Cross Motion to Authorize Filing
Injunction against the plaintiff on 17 October 2019. Again, there appears to
be no entry of appearance of any legal counsel for the plaintiff Sabeniano for
the abovecited case with the New York Courts.
xxx
Considering the foregoing antecedents and long standing
doctrines, it may well be asked why it took no less than sixteen
(16) years and some fifty (50) grossly unfounded cases lodged
by respondent Borromeo in the different rungs of the Judiciary
before this Court decided to take the present administrative
measure. The imposition on the time of the courts and the
unnecessary work occasioned by respondent's crass
adventurism are self-evident and require no further elaboration.
If the Court, however, bore with him with Jobian patience, it
was in the hope that the repeated rebuffs he suffered, with the
attendant lectures on the error of his ways, would somehow
seep into his understanding and deter him from further forays
along his misguided path. After all, as has repeatedly been
declared, the power of contempt is exercised on the
preservative and not the vindictive principle. Unfortunately the
Court's forbearance had no effect on him.
PRAYER
RESPECTFULLY SUBMITTED.
COPY FURNISHED:
MODESTA R. SABENIANO
Plaintiff
901A Ritz Towers,
6745 Ayala Ave. Makati City
GREETINGS:
Please submit the foregoing motion for the consideration and approval
of the Honorable Court on 20 March 2020 at 8:30 a.m. in the morning.
ISAAC D. DE LEON
EXPLANATION
ISAAC D. DE LEON