REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

REGIONAL TRIAL COURT
TAGUIG CITY
Branch ___

________________________
Plaintiff,

-versus- Civil Case No. ____

For: Refund or Tax Credit of

________________________
Defendants.
x------------------------------------------x

OPPOSITION WITH MOTION TO STRIKE OUT

Plaintiff ______________________ (“Plaintiff”), by and through the

undersigned counsel, unto this Honorable Court, most respectfully avers that:

1. On 1 October 2019, Plaintiff _____ was in receipt of a copy of

Defendants’ Manifestation with Motion to Admit Amended Pre-trial Brief
dated 19 September 2019 (“subject motion”).

2. However, the subject motion bears no notice specifying the time

and date of the hearing thereof. The subject motion is therefore defective as it
violates Sections 4 and 5, Rule 15 of the Rules of the Court (“Rules”) which
expressly states that:

“Section 4. Hearing of motion. – Except for motions which

the court may act upon without prejudicing the rights of the
adverse party, every written motion shall be set for hearing by
the applicant.

Every written motion required to be heard and the

notice of the hearing thereof shall be served in such a manner
as to ensure its receipt by the other party at least three (3) days
before the date of hearing, unless the court for good cause sets
the hearing on shorter notice.”

Section 5. Notice of hearing. – The notice of hearing shall

be addressed to all parties concerned, and shall specify the time
and date of the hearing which must not be later than ten (10)
 days after the filing of the motion. (Italics and underscoring
supplied)

3. The Supreme Court, in a number of cases, has repeatedly held

that the requirements of Sections 4 and 5 of Rule 15 are mandatory and that
failure to comply therewith is fatal to the movant’s cause. In fact, in “Manila
Electric Company vs. La Campana Food Products, Inc.,” 247 SCRA 77,
[1995], the Supreme Court had the occasion to rule that:

“The attention of Meralco is drawn to the fact that it indeed

failed to indicate in its motion for extension of time to file an
answer a notice of place and date of hearing, an omission for
which it could offer no explanation. As we declared in the case
of Gozon, et al. v. Court of Appeals:

‘It is well-entrenched in this jurisdiction that a

motion which does not meet the requirements of
Sections 4 and 5 of Rule 15 of the Rules of Court
is considered a worthless piece of paper which the
clerk has no right to receive and the court has no
authority to act upon.’” (Emphasis supplied)

4. In the instant case, a perusal of Defendants’ Manifestation with

Motion to Admit Amended Pre-trial Brief would show that they failed to set
the same for hearing and neither did it contain a notice of hearing setting the
specific date and time thereof.

5. Considering the foregoing, it is axiomatic that the subject motion

is a worthless piece of paper which the clerk has no right to receive and the
court has no authority to act upon.

6. The filing of such motion was obviously calculated to blindside

Plaintiff and deprive it of the chance to adequately and timely oppose it.

7. This is precisely what the hearing and notice rule is supposed to

prevent and avoid. The Supreme Court established the rationale for the three
(3) day notice rule under Rule 15 in “Jehan Shipping Corporation vs. NFA,”1
to wit:

“As an integral component of procedural due process, the

three-day notice required by the Rules is not intended for the
benefit of the movant. Rather, the requirement is for the
purpose of avoiding surprises that may be sprung upon the
adverse party, who must be given time to study and meet the
arguments in the motion before a resolution by the court.
Principles of natural justice demand that the right of a party

1 G.R. No. 159750, December 14, 2005.

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 should not be affected without giving it an opportunity to be
heard. (Underscoring supplied)

8. Having failed to comply with Sections 4 and 5, Rule 15 of the

Rules, Defendants’ Manifestation with Motion is a mere scrap of paper.

9. With all due respect, Plaintiff submits that such unwarranted and
callous disregard of the Rules should not be allowed. The point here is that
parties must be given time to study the motion in order to enable them to
prepare properly and engage the arguments of the movant consistent with
protecting their right to procedural due process.

10. Accordingly, as the subject Motion was filed in clear violation of

the afore-cited rules, it deserves no consideration from this Honorable Court
and should be denied outright as held in “Meris vs. Ofilada:”2

“…the court will not act on the motion if there is no proper

notice and/or proof of service of the notice on the adverse
party. It is nothing but a useless piece of paper filed with the
court. It is not a motion. It presents no question which the court
could decide. The court has no reason to consider it and the
clerk has no right to receive it without that compliance with the
rules. Harsh as they may seem, these rules were introduced to
avoid a capricious change of mind in order to provide due process
to both parties and ensure impartiality in the trial.” (Italics and
underscoring supplied for emphasis)

11. Therefore, as the subject motion is nothing but a useless piece of

paper filed with the court, Plaintiff prays that Defendants’ Manifestation with
Motion to Admit Amended Pre-trial Brief should be denied and stricken off
the record of the instant case.

PRAYER

WHEREFORE, premises considered, it is respectfully prayed of this

Honorable Court that Plaintiffs’ Opposition with Motion to Strike be granted
and Defendants’ Manifestation with Motion to Admit Amended Pre-trial Brief
dated 19 September 2019 be denied and stricken off the record of the instant
case for being procedurally defective.

Other reliefs just and equitable under the circumstances are likewise
prayer for.

Respectfully submitted.

______ City for Taguig City. 11 October 2019

2 A.M. No. RTJ-97-1390, August 5, 1998 citing Manakil v. Revilla, 42 Phil 81.

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_______________________
Counsel for Plaintiff

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 NOTICE OF HEARING

THE CLERK OF COURT

________________

Counsel for Defendants

________________

G R E E T I N G S!

Please submit the foregoing Opposition with Motion to Strike Out for
the consideration of this Honorable Court on _______________ or soon
thereafter as may be convenient to the calendar of this Honorable Court
subject to this Honorable Court’s pleasure and discretion.

________________________

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COPY FURNISHED:

Counsel for Defendants

_______________________

CERTIFICATION/EXPLANATION
ON MODE OF SERVICE

Plaintiff, through undersigned counsel, hereby states and manifests

that:

1. The service of the foregoing Opposition with Motion to Strike

Out upon Defendants herein was made by registered mail due to time
constraints and lack of messengerial staff.

2. This Certification/Explanation is being made in compliance with

Section 11, Rule 13 of the 1997 Rules of Civil Procedure.

______________________