Republic of the Philippines

First Judicial Region

REGIONAL TRIAL COURT
Branch 3
Baguio City

NIEVEROSE MENESES,
Petitioner,
versus
HON. LEODY M.
OPOLINTO, in his capacity
as presiding judge of
MTCC-Branch 3, Baguio
City, and MADONNA
GUILANDO,
Respondents.

Special Civil Action No.

8220-R
For: CERTIORARI UNDER
RULE 65 OF THE
REVISED RULES OF
COURT WITH
APPLICATION FOR
TEMPORARY
RESTRAINING ORDER

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

PETITIONERS MEMORANDUM

PETITIONER Nieverose Meneses, through undersigned

counsel, and unto this Honorable Court most respectfully
submits this Memorandum to summarize and further bolster
her arguments in support of the petition at hand stating that:

Public respondent acted with grave abuse of

discretion amounting to lack or excess of jurisdiction

when he acted upon the Motion to Revive Criminal
Case Nos. 129224 and 129225 even though said
motion was not set for hearing by the applicant.

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I.a

The undisputed fact is that on June 23, 2014, Atty. Jaime

A. Paredes, Jr. filed a Motion to Revive (Annex A) which he

did not set for hearing.

On the very same day, public

respondent on his own initiative set the motion for hearing

on August 1, 2014 (Annex B).

I.b

The first paragraph of Section 4 of Rule 15 of the

Rules of Court states that, 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. In short, all litigated motions must be set
for hearing.

The motion to revive is a litigated motion

because its allowance would prejudice the rights of the

accused. It would have the effect of changing the status of
the criminal cases against her from provisionally dismissed
to revived. Her right to liberty and property would go from
secured to unsecured.

I.c

The Motion to Revive is a litigated motion even if it did

not diminish the defenses available to the accused. This is

in the same vein as the Supreme Courts ruling in Heirs of

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Pedro

Pasag,

et.

al.

vs.

Spouses

Lorenzo

and

Florentina Parocha, et. al., G.R. No. 155483, April 27,

2007 where it resolved that a Motion to Formally Offer
Evidence is a litigated motion.

Such motion had not

diminished respondents available defenses but as long as its

allowance could prejudice, even to the slightest degree,
respondents rights, then it is a litigated motion which should
have been set for hearing by the applicant.

I.d

The rule on proper notice of a litigated motion had been

relaxed

in

circumstances.

few

civil

cases

based

on

exceptional

The cases involved in the present petition

however are not civil cases but criminal cases and the rules
in criminal cases cannot be relaxed in favor of the
prosecution to the prejudice of the accused. The rules are
always interpreted in favor of the accused and not the
prosecution who has all the resources and power of the state
behind it.

I.e

Acting on a litigated motion which lacks proper notice

of hearing constitutes grave abuse of discretion amounting

to lack or excess of jurisdiction on the part of the public

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respondent. The Supreme Court ruled in Spouses Ernesto

and Felicisima Gutierrez vs. Pascual Cabrera, G.R. No.
154064, February 28, 2005 that they have time and
again warned that a notice of hearing which does not comply
with the requirements of Sections 4 and 5, Rule 15 of the
Rules of Court, is a worthless piece of paper and would not
merit any consideration from the courts. The clerk of court
does not have the duty to accept it, much less, to bring it to
the attention of the presiding judge. The defect cannot be
cured by any subsequent action of the court and it is grave
abuse of discretion of the court to overlook the mandatory
rule on notice and act on the motion. (underlined for
emphasis) In fact, public respondent in his January 28, 2015
Order (Annex C) admitted that the motion to revive should
have been disallowed on the sole ground of lack of proper
notice.

II

Public respondent acted with grave abuse of

discretion amounting to lack or excess of jurisdiction

when he allowed Atty. Jaime A. Paredes, Jr., who
according to him in his January 28, 2015 Order is not
a private prosecutor duly authorized to actively
prosecute these cases, to initiate the reviving of

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Criminal Case Nos. 129224 and 129225.

II.a

The undisputed fact is that Atty. Jaime A. Paredes, Jr.

does not have a written authority from the City Prosecutor of

Baguio to be a private prosecutor in Criminal Case Nos.
129224 and 129225 as required by A.M. No. 02-2-07-SC
which took effect on May 1, 2002.

II.b

A.M. No. 02-2-07-SC amended Section 5 of Rule 110 of

the Rules of Court to the effect that the offended party can
no longer prosecute their own case before municipal trial
courts.

II.c

The January 28, 2015 Order of public respondent states

that, It should be noted that the court considered the

personality of the Attorney Paredes as counsel for the private
complainant, and not as a private prosecutor duly authorized
to actively prosecute these cases. As a mere counsel/agent
of the private complainant, he cannot do what his principal,
the private complainant, cannot do.

He cannot prosecute

and he cannot revive criminal cases.

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II.d

It was ruled in the case of Joel B. Caes vs. Honorable

Judge Alfredo M. Gorgonio, et. al., G.R. Nos. 74989-90,

November

6,

1989, that, It is axiomatic that the

prosecution of a criminal case is the responsibility of the

government prosecutor and must always be under his
control. This is true even if a private prosecutor is allowed to
assist him and actually handles the examination of the
witnesses and the introduction of other evidence.

The

witnesses, even if they are the complaining witnesses,

cannot act for the prosecutor in the handling of the case.
Although they may ask for the filing of the case, they have
no personality to move for its dismissal or revival as they are
not even parties thereto nor do they represent the parties to
the action. xxx It follows that the motion for the revival of
the cases filed by prosecution witnesses should have been
summarily dismissed by the trial judge.

Philippine Law

Journal, Volume 80, Number 1, September 2005 states

that the Caes case is the jurisprudence which should now be
followed in reviving criminal cases.

II.e

The signed conformity of the assigned trial prosecutor

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(Prosecutor Arlene Valerie G. Cacho) in the written Motion to

Revive is not equivalent to and is not a substitute for an
authority to prosecute from her superior, the city prosecutor.
Prosecutor Cacho has no power to grant a written authority
to prosecute. Let it be stressed that the Motion to Revive
was a written motion and not a motion made in open court
where Prosecutor Cacho could have personally moved for the
revival of the criminal cases herself which could have cured
Atty. Paredess lack of authority to move for revival.

Petitioner reiterates her prayer that the assailed Orders

of MTCC Branch 3, Baguio City in Criminal Case Nos.
129224 and 129225 dated January 28, 2015 and October 17,
2014 reviving the provisionally dismissed criminal cases be
reversed and set aside for having been rendered with grave
abuse

of

discretion

amounting

to

lack

or

excess

of

jurisdiction and for lack of merit.

Other reliefs, just and equitable under the premises, are
likewise prayed for.
Maddela, Quirino, June 30, 2015.

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ATTY. JUNARD N. RAMOS

Ramos Law Office
Public Market, Poblacion Norte
Maddela, Quirino
Roll No. 52289
PTR No. 4547503 01-02-15
Maddela
Quirino

IBP No. 758706 12-18-14

MCLE IV No. 6314 06-19-12

Copy furnished:

Hon. Leody M. Opolinto

MTCC-Branch 3, Baguio City

Atty. Reynaldo A. Paredes

No. 203 Handaan Building
Session Road, Baguio City

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A copy of the foregoing pleading had been served upon

the above persons by registered mail due to distance and
lack of personnel to effect personal service.

ATTY. JUNARD N. RAMOS

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