Republic Of the Philippines

Regional Trial Court

Fourth judicial Region
Branch (21) 121
Imus, Cavite

Orlando M. Mateo,
Plaintiff,

Civil Case No. 7024-19

-versus-

Norman C. Legaspi, ETC.,

Defendants

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

COMMENT/OPPOSITION AD CAUTELAM
(To Plaintiff’s Urgent Ex-Parte Motion for Resolution on the Prayer for
Ex-Parte Issuance of TRO)

Defendants, Norman C. Legaspi, Alex I. Esacalona,

Florian O. Concepcionm Carl O. Bawalan, Robin G. Mcdowall,
Roberto R. Rapadas, Miguel M. Hernandez, MAximo G. Caro,
Jeong Soon Hwang, Jorge Celestino E. Lee, Jose M.
Crisostomo (hereafter referred to as “Individual Defendants/s”),
and Riviera Gold Club, Inc. (hereafter referred to as “Company
Defendant” or the “Company” or the “Club”) through counsel, and
unto this Honorable Court, most respectfully submit this
Memorandum, for the consideration and guidance of this Honorable
Court, and in support thereof, most respectfully aver:

A. To reiterate under pain of being

repetitive, the instant Complaint,
together with all ancillary provisional
remedies including herein prayer for
the issuance of a Temporary
Restraining Order, must be denied and
dismissed for Lack of Cause of Action.

1. As exhaustively discussed in defendants’ Memorandum, a

writ of preliminary injunction and a TRO are injunctive reliefs and
preservative remedies for the protection of substantive rights and
interests. An application for the issuance of a writ of preliminary
injunction and/or TRO may be granted upon the filing of a verified
application showing facts entitling the applicant to the relief
demanded. Essential to granting the injunctive relief is the existence
of an urgent necessity for the writ in order to prevent serious
damage.

2. Rule 58, Section 3 of the Rules of Court provides the

instances when a writ of preliminary injunction may be issued:

Section 3. Grounds for issuance of preliminary

injunction. - A preliminary injunction may be
granted when it is established:

(a) That the applicant is entitled to the relief

demanded, and the whole or part of such relief
consists in restraining the commission or
continuance of the act or acts complained of: or in
requiring the performance of an act or acts, either
for a limited period or perpetually;

(b) That the commission, continuance or non-

performance of the act or acts complained of
during the litigation would probably work injustice
to the applicant; or

(c) That a party, court, agency or a person is

doing, threatening, or is attempting to do, or is
procuring or suffering to be done, some act or acts
probably in violation of the rights of the applicant
respecting the subject of the action or proceeding,
and tending to render the judgment ineffectual.
 3. Jurisprudence has likewise established that the following
requisites must be proven first before a Temporary Restraining Order
or a Writ of Preliminary Injunction, whether mandatory or
prohibitory, may be issued:

(1) The applicant must have a clear and

unmistakable right to be protected, that is a right
in esse;

(2) There is a material and substantial invasion of

such right;

(3) There is an urgent need for the writ to prevent

irreparable injury to the applicant; and

(4) No other ordinary, speedy, and adequate

remedy exists to prevent the infliction of
irreparable injury. (Emphasis ours)

4. In the case before us, Plaintiff failed to prove that there is

no other ordinary, speedy and adequate remedy exists to prevent the
infliction of irreparable injury.
5. Both the provisions of Articles of Incorporation and By-
Laws of the Club expressly provides, viz;

Article XII

SUSPENSION AND EXPULSION

Section1. SUSPENSION OR EXPULSION. The Board

of Directors, by the affirmative vote of Majority of
all of its incumbent members, may reprimand,
suspend or expel by a vote of 2/3 of all of its
members, a member on any of the following
grounds:

a. Violation of the Articles of Incorporation or of the

By-Laws;
 b. Violation of Rules and Regulations adopted by the
Board of Directors; or

c. Acts or conducts of the member inimival to the

interest and purposes of the club.

The member concerned shall be informed of the

charges against him in writing, and may appeal
to a general or special meeting of
stockholders whose decision shall be final.
The vote of majority of the stockholders
present in such meeting shall be final.
(Emphasis ours)

xxx

6. A perusal of the above quoted provision of the By-Laws

provides that Plaintiff’s recourse should have been an “appeal to a
general or special meeting of stockholders”.

7. Akin and analogous to the principal of exhaustion of

remedies, Plaintiff may not, on his own whim, seek redress from the
Honorable Court before he has exhausted all extra-judicial adequate
remedies available to him.

8. Corollary to the doctrine of primary jurisdiction is the

principle of exhaustion of administrative remedies. The Court, in a
long line of cases,1 has held that before a party is allowed to seek the
intervention of the courts, it is a pre-condition that he avail himself of
all administrative processes afforded him. Hence, if a remedy within
the administrative machinery can be resorted to by giving the
administrative officer every opportunity to decide on a matter that
comes within his jurisdiction, then such remedy must be exhausted

1City Engineer of Baguio v. Baniqued, G.R. No. 150270, November 26, 2008, 571 SCRA
617, 627-628; Buston-Arendain v. Gil, G.R. No. 172585, June 26, 2008, 555 SCRA 561,
572; Province of Zamboanga del Norte v. Court of Appeals, G.R. No. 109853, October 11,
2000, 342 SCRA 549, 557.
first before the court’s power of judicial review can be sought. The
premature resort to the court is fatal to one’s cause of
action.

9. The doctrine of exhaustion of administrative remedies is

based on practical and legal reasons.2 The availment of administrative
remedy entails lesser expenses and provides for a speedier
disposition of controversies. Furthermore, the courts of justice, for
reasons of comity and convenience, will shy away from a dispute
until the system of administrative redress has been completed and
complied with, so as to give the company or agency concerned every
opportunity to correct its error and dispose of the case.3

10. While Plaintiff would argue that a letter was sent to Mr.
Norman Legaspi, the By-Laws requires that the appeal should be
made – “to a general or special meeting of stockholders
whose decision shall be final.”

11. Thus, because of Plaintiff’s failure to exhaust other adequate

remedy that exists, the instant Complaint has no leg to stand on
having no cause of action, thereby divesting him of any merit for the
issuance of any injunctive relief, let alone the issuance of a
Temporary Restraining Order.

B. Ex Parte Relief is Only

Justified in Limited,
Emergency Circumstances

12. Ex parte applications are solely for extraordinary relief and

are rarely justified. They are inherently unfair, pose a threat to the
administration of justice, debilitate the adversary system and the goal

2 Public Hearing Committee of the Laguna Lake Development Authority v. SM Prime

Holdings, Inc., G.R. No. 170599, September 22, 2010, 631 SCRA 73, 79; Montanez v.
Provincial Agrarian Reform Adjudicator (PARAD), G.R. No. 183142, September 17, 2009,
600 SCRA 217, 230.
3 Public Hearing Committee of the Laguna Lake Development Authority v. SM Prime
Holdings, Inc., supra, at 79-80; Montanez v. Provincial Agrarian Reform Adjudicator
(PARAD), supra, at 230-231.
often appears to be to surprise opposing counsels at least to force
him or her to drop all other work to respond on short notice. 4
Further, advocates draw conclusions that appear to be supported by
voluminous exhibits, but are not borne out when the evidence is
reviewed with more deliberation and more careful rebuttal than is
possible in hasty hearings such as the instant ex parte motion.

13. In the ex parte motion filed by Plaintiff, all the above

concerns abound. Defendant is given only 24 hours to respond, and
Defendant is time-limited from filing a well-prepared response to the
numerous allegations in Plaintiff's Ex Parte Motion. Further, the
request appears to merely be an attempt to force the Honorable
Court to respond to an issue with haste, which would otherwise
require a meticulous and conscientious appreciation of evidence that
would have to be presented before it.

C. Plaintiff Has Not Established

that A Legitimate, Emergency
Circumstance Exists To Justify
Ex Parte Relief

14. A legitimate circumstance may arise where there is some

genuine urgency such that - immediate and irreparable injury, loss,
or damage will result to the applicant before the adverse party or his
attorney can be heard in opposition.

15. Plaintiff has not shown that he will be irreparably prejudiced

to justify ex parte relief, the evidence must show that the Plaintiff's
cause will be irreparably prejudiced if the motion is heard according
to regular noticed motion procedures.

16. To show irreparable prejudice, the Plaintiff must show that

there are close issues that justify the court's review before the party

4 Mission Power Engineering Co. v. Continental Casualty 19 Co., 883 F. Supp. 488 (C.D. Cal. 1995)
suffers the severe harm. If the harm would not be severe, then it
must be apparent that the underlying motion has a high likelihood of
success on the merits.

17. Plaintiff is not irreparably prejudiced because he has not

provided any facts or explained why the Court must act immediately
to prevent a severe harm. The original Complaint on this issue was
filed just weeks go while his suspension happened since months ago.
Plaintiff's delay in filing this application indicates that there is no
urgency to the requested relief.

18. Thus, the court finds that plaintiff's delay in requesting a

TRO militates against its issuance. Plaintiff has also not explained
why his Motion could not have been made during the last hearing
when the Honorable Court has already pronounced its order requiring
parties to submit their respective memoranda.

19. Furthermore, the Plaintiff has not explained or provided any

facts that establish how any alleged harm he might suffer is severe.
While he asserts in a conclusory fashion that he is "suffering a
current irreparable harm" not only has he failed to state what his
severe harm is, he has failed to explain how it is irreparable. There
are also no supporting declarations attesting to the necessity for an
ex parte Motion.

20. Finally, Plaintiff's request is also far from routine, it is almost

akin to a request for the Court to already rule on the merits of the
case pending before it, via the instant Ex Parte Application. To that
end, it is improper because it seeks to compel an action that forms
the basis of the litigation.

PRAYER

WHEREFORE, it is respectfully prayed of this Honorable Office

that the above-captioned complaint be DISMSSED outright and the
instant prayer for issuance of a Temporary Restraining Order be
denied for utter lack of merit.
 Other reliefs just and equitable under the premises are likewise
prayed for.


 Makati City for Imus, Cavite, 18 November 2019.

ALONSO AND ASSOCIATES

Unit 2503, 25th Flr., Phil. AXA Life Centre
Sen. Gil Puyat Avenue cor. Tindalo St.

By:

JOSABETH V. ALONSO
PTR No. 6615031/Makati City/01-03-18
IBP No. 022741/Quezon City/01-03-18
Roll No. 34994
MCLEComp.No.V-0011644
11 November 2015

CHRISTOFFER ALLAN A. LIQUIGAN

PTR No.6615035/Makati City/01-03-18
IBP No. 022737/Makati City/01-03-18
Roll No. 63791
MCLEComp.No.V-0016759
02 March 2016

Copy Furnished:

ATTY. ROMANO M. DIAZ

Counsel for Plaintiff
2nd floor, Sycamore Prime Bldg.
Alabang-Zapote Road cor
Buencamino St., Alabang,
Muntinlupa City