1

REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION
REGIONAL TRIAL COURT
MANILA CITY, BRANCH____

FERDINAND M. JOSE
Plaintiff,
-versus-

CIVIL CASE NO._____

FOR: DAMAGES

HAYDEN C. MANUEL
Defendant.
x---------------------------------x
MOTION TO DISMISS
COMES NOW the Defendants, HAYDEN C. MANUEL, through
the undersigned counsel, appearing especially and solely for this
purpose, and to this Honorable Court, most respectfully moves for
the dismissal of the above-captioned Complaint on the following
arguments:
I.
GROUND
THE COMPLAINT DOES NOT STATE A CAUSE OF ACTION
II.
DISCUSSION
THE COMPLAINT DOES NOT STATE A CAUSE OF ACTION
1.1 Settled is the rule that the basis of the complaint in a civil
action is a cause of action. Hence, every ordinary civil action must

be based on a cause of action.

A cause of action is the action or

omission by which a party violates a right of another. 2 There must

be a legal right on the plaintiff and correlative obligation of the
defendant which the latter violated the formers rights which causes
injury or damage.
1.2 The cause of action must unmistakably be stated or
alleged in the complaint or that all of the elements of the cause of
action required by substantive law must clearly appear from the
reading of the complaint.

In the case at bar, defendant respectfully

submits that the complaint is wanting on this particular matter.

1.3 First. There was a failure to show the elements constituting
the complaint. A clear reading thereof shows mere allegations
without legal basis from substantive law. Paragraph 14 of the
complaint thereof shows that the internal infection on the
complainant does not show any specific particularity as to which it
is attributed thereto, to wit:

14. It was discovered that a piece of the plastic used to

extract the tumors was left during the laparoscopic surgery.
This caused an internal infection to the plaintiffs body. A
copy of the operative technique form is attached as Annex
H and made an integral part hereof.
Jurisprudence provides that the cause of action in a complaint
is not what the designation of the complaint states, but what the
1 Section 1, Rule 2 of the Rules of Court
2 Section 2, Rule 2 of the Rules of Court
3 Anchor Savings Bank v. Furigay, 693 SCRA 384, 396, March 13, 2013

allegations in the body of the complaint define and describe. The

designation or caption is not controlling, more than the allegations
in the complaint themselves, are for it is not even an indispensable
part of the complaint.4 A mere reading of the complaint itself does
not, in all respects, show any allegations that would justify the
basis for a civil action for damages on the part of the plaintiff.

1.4 Second. The plaintiff does not have sufficient basis to

award damages as it failed to sufficiently proven the basis of the
same. A reading of the allegations nos. 15-20 from the same
complaint provides, to wit:

15. On June 24, 2015, plaintiff was discharged from UST

Hospital. A copy of the receipt of the medical bill amounting to
P400,000 is attached as Annex I and made an integral part
hereof.

16. Defendant should be liable for the reimbursement of the

medical expenses worth P405,000 and damages incurred by
the plaintiff.

17. Plaintiff was not able to report for work for sixty (60) days
due to the complications of the surgery and the treatment of
the internal infections. Plaintiff is therefore entitled to
P150,000 unrealized income equivalent to his salary for two
months.

4 De la Cruz v. Court of Appeals, 510 SCRA 103,117

18. To serve as an example for the public good, and to prevent

defendant from repeating the same act, it should be held liable
to the plaintiff for exemplary damages in the sum of P150,000.

19. Plaintiff was constrained to engage the services of counsel

in order to protect his legal rights for a professional fee of
P150,000, for which defendant should be held liable.

20. Defendant should also be held liable for all costs and
expenses of litigation.

The Supreme Court in a long line of its decisions held that in

civil cases, the burden of proof rests upon the plaintiff, who is
required to establish his case by a preponderance of evidence. 5 In
the case at bar, only mere receipt of the medical bill presented by
the complainant was shown. The other relief sought by the same
does not provide any sufficient legal basis in order to be awarded
with the other damages prayed for.
1.4.1 Assuming for the sake of argument that the
complainant is entitled to the damages sought for, it
is still without basis. Under Article 2199 of the Civil
Code, actual or compensatory damages are those
awarded in satisfaction of, or in recompense for, loss
or injury sustained. They proceed from a sense of
natural justice and are designed to repair the wrong
that has been done, to compensate for the injury
inflicted and not to impose a penalty. In actions
5 De Leon v. BPI. G.R. no. 184565. November 20, 2013

based on torts or quasi-delicts, actual damages

include all the natural and probable consequences
of the act or omission complained of.6 There are two
kinds of actual or compensatory damages: one is
the loss of what a person already possesses (dao
emergente), and the other is the failure to receive as
a benefit that which would have pertained to him
(lucro cesante).7
In the case at bar, the complaint is bereft of any allegation
constitutive of the foregoing cases.

RELIEF
WHEREFORE, it is respectfully prayed that the Complaint with
respect to the movant plaintiff be dismissed for lack of jurisdiction
over the person of the defendant.

Other reliefs just and equitable are likewise prayed for.

6 Art. 2202. Civil Code; Europa v. Hunter Garments Mfg. (Phil.), Inc., G.R. No. 72827, July 18, 1989, 175 SCRA 394,
397.

7 TOLENTINO, supra, at p. 636 citing 8 Manresa 100.

Makati City for the City of Manila, October 20, 2015

BD-MVPS LAW FIRM

Counsel for Defendants
5th Floor GC Corporate Tower
Legaspi, San Lorenzo Village
Makati City

By:

Floyd Mago
PTR NO. 1245678; SFC: 2/10/07
IBP O.R. No. 745392; Manila; 03/73/07
Attorneys Roll No. 84729

COPY FURNISHED

JOSE MARIA MARQUEZ

Counsel for the Plaintif
Unit 2808, Palm Towers,

San Antonio Village, Makati City

Tel. 333-9999

NOTICE OF HEARING

The Honorable Branch Clerk of Court

RTC Manila, Branch __
JOSE MARIA MARQUEZ
Counsel for the Plaintif
Please take note that the foregoing motion will be submitted, and is
requested to be submitted, for the consideration and approval of the
Honorable Court on November 4, 2015 at 1:30 pm or soon as
thereafter as matter and counsel may be heard on notice.

Floyd Mago

EXPLANATION ON SERVICE OF REGISTERED MAIL

Defendants, by counsel, respectfully manifest that due to lack
of messengerial personnel, time constraint and the distance
involved, a copy of the foregoing Motion to Disiss was served by
registered mail in accordance with Rule 13 of the Revised Rules of
Civil Procedure.

Floyd Mago