Republic of the Philippines

REGIONAL TRIAL COURT

NATIONAL CAPITAL JUDICIAL REGION
Branch 121, Caloocan City

MAXIPACIFIC CORPORATION,
Plaintiff,

- versus - Civil Case No. C-23588

ELEGANT SHUTTLE SERVICES, INC.

And ALICIA J. KHO,
Defendants.

xxx - - - - - - - - - - - - - - - - - - - xxx

MEMORANDUM OF THE PLAINTIFF

Plaintiff MAXIPACIFIC CORPORATION, by counsel, most

respectfully submits to the Honorable Court this Memorandum
pursuant to the Order of the Honorable Court on 18 May 2017, and
respectfully states the following:

I. TIMELINESS OF THE FILING OF THIS MEMORANDUM

On 18 May 2017, the above-captioned case was submitted for

resolution as both parties manifested their intention to adopt their
respective evidence in the Omnibus Motion to Lift and to Reduce
Excessive Attachment as their evidence in-chief for the instant case.
The Honorable Court also ordered both parties to file their respective
Memoranda within thirty (30) days from receipt of the Honorable
Courts Order on Plaintiffs Formal Offer of Evidence.

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 Plaintiff, through counsel, received such Order on 30 May 2017.
Plaintiff, therefore, has until 29 June 2017 to file its Memorandum.
Thus, this Memorandum is timely filed.

II. THE CASE AND THE PARTIES

The instant case is about the claim of the Plaintiff

MAXIPACIFIC CORPORATION (Plaintiff or Maxipacific) from
defendant ELEGANT SHUTTLE SERVICES, INC. (defendant
Elegant) and ALICIA KHO (defendant Kho) for the unpaid deliveries
by the former to the latter of automotive diesel in different instances
from 21 November 2012 to 9 February 2013 (and its aging)
amounting to One Million Twenty-Nine Pesos and 58/100
(Php1,000,029.58).

The Plaintiff is a corporation duly organized and existing under

the laws of the Republic of the Philippines. It is engaged in the selling
of fuel, coal, and lubricant products.

Defendant Elegant is also a corporation duly organized and

existing under the laws of the Philippines. It is engaged in shuttle
services. It was a client of the Plaintiff until the former had defaulted
in its obligation to the latter that led to the filing of this case.

Defendant Kho, on the other hand, was, during the said

transactions with Plaintiff, the President of defendant Elegant;

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 III. THE ANTECEDENT FACTS

Defendant Elegant had been a customer of Plaintiff since 2009.

At first, defendant Elegant was quite a good paying customer, until it
defaulted in its obligation to Plaintiff for the last several deliveries.

The controversy in this case started when Plaintiff made the

following deliveries of fuel products to defendants upon the latters
order:

Date of delivery Number of Price Delivery

liters Receipt No.

21 November 2012 12,000 Php427,600.00 119831

29 December 2012 4,000 80,860.00 121112

12 January 2013 4,000 79,800.00 121543

29 January 2013 4,000 81,600.00 122134

9 February 2013 6,000 247,200.00 122645

Defendants asked for a fifteen (15) day credit term, to which

Plaintiff granted. However, when 12,000 liter fuel delivery fell due on

1 Exhibit C for the Plaintiff.

2 Exhibit D for the Plaintiff.
3 Exhibit E for the Plaintiff.
4 Exhibit F for the Plaintiff.
5 Exhibit G for the Plaintiff.
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6 December 2012 (DR No. 11983), defendants asked to put on hold
their payment of post-dated check for the said delivery.

Unfortunately, defendants promise to have its obligation settled

did not materialize. The other deliveries to defendant Elegant also
remained unpaid as of this moment.

Due to such failure on the part of defendants to settle their

obligation to Plaintiff, the latter had continuously made follow-ups
about such non-compliance and demanded payment. This happened
as early as 4 April 2013, when then Plaintiffs General Manager for
Fuel, Mr. Joseleo J. Jiro, would send letters to defendants demanding
payment of the said unpaid fuel deliveries, proved to be of no avail.
Notwithstanding repeated oral and written demands for defendants to
pay their outstanding obligations, defendants had refused and up to
the present failed to settle their legal and valid obligation to the
damage and prejudice of Plaintiff.

On 11 July 2013, Plaintiffs counsel sent a formal demand letter

to defendants, which was personally received by the latter on 11 July
2013. To the dismay of plaintiff, the justified and legal demand/s for
payment of the subject deliveries again had been clearly brushed
aside despite the receipts of said demand, defendants did not make
any response to plaintiff or its counsel - and proved to no avail.

With such continuous refusal of the defendants to pay their

outstanding obligation to Plaintiff, the latter was constrained to file the
instant case on 26 December 2013 with prayer for the issuance of a
writ of preliminary attachment. In this regard, the application for writ of
preliminary attachment was duly granted by the Honorable Court on 2
January 2014.

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 For their part, Defendants, questioned the propriety of the
issuance of the writ of preliminary attachment by the Honorable
Court, alleging that they have already paid at least Nine Hundred
Thirty Thousand Pesos (Php930,000.00). Thus, there was, allegedly,
an excess attachment when the Honorable Court attached three (3)
buses of defendant Elegant. In support of this allegation, defendants
presented as their sole witness a certain Maribel C. Cruz, who has
been employed with defendant Elegant only as of January 2014.

Plaintiff, however, presented its General Manager, Joseleo J.

Jiro, and duly countered that the said payment was made for previous
deliveries of fuel products prior to 21 November 2012; hence, the
same pertains to different DRs. At this juncture, documentary exhibits
had been duly marked and identified by said witness-General
Manager to substantiate the payments having been applied to
previous deliveries. Clearly, the deliveries subject of the instant
complaint being those remaining deliveries from 21 November 2012,
to 9 February 2013, still unpaid and due and demandable.

IV. THE ISSUES

The issues in contention in the instant case are the following:

1. Whether or not there was excessive attachment against the

defendants sans proof of the actual value of the buses
attached;

2. Whether or not defendants have almost paid their

outstanding obligation to Plaintiff even though the same
payments were applied to different transactions;
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 3. Whether or not defendants are liable to Plaintiff in the
amount of One Million Twenty-Nine Pesos and 58/100
(Php1,000,029.58); and

4. Whether or not Plaintiff is entitled to receive award for

attorneys fees, exemplary damages, and cost of suit.

V. ARGUMENTS

Plaintiff respectfully submits the following arguments for the

consideration of the Honorable Court:

1. The attachment made against defendants was proper and

not excessive;

2. Defendants have not yet paid their outstanding obligation to

Plaintiff in the amount of Php1,000,029.58, representing
unpaid deliveries of fuel products, or any portion thereof;

3. Defendants are still liable to Plaintiff in the amount of

Php1,000,029.58; and

4. Plaintiff is entitled to claim from defendants One Hundred

Thousand Pesos (Php100,000.00) for attorneys fees and
litigation expenses, Fifty Thousand Pesos (Php50,000.00)
for exemplary damages, and the cost of suit.

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 VI. DISCUSSION

The attachment made against

defendants was proper and not
excessive.

Defendants allege that they have already paid at least

Php930,000.00 to Plaintiff and that the remaining obligation of
defendants to Plaintiff is just Seventy Thousand Twenty-Nine Pesos
and 58/100. Thus, with this amount, the attachment made against
defendants (3 buses) was excessive.

Contrary to the said allegations of defendants, Plaintiff

respectfully submits, however, that defendants argument does not
stand. At this juncture, plaintiff asserts, to wit:

First, its sole witness, Ms. Maribel C. Cruz, has no personal

knowledge on the matters she testified on in support to defendants
allegations of payment and excessive attachment. A perusal of her
statements in her Judicial Affidavit shows that she was not yet
employed by defendant Elegant during the happening of the
transactions in question on 21 November 2012, 29 December 2012,
12 January 2013, 29 January 2013, and 9 February 2013, to wit:

Q2: How long have you been connected with

[defendant] Elegant?

A2: I started sometime around January 2014.

XXX

Q6: Where were you when the fuel purchase

transactions as well as payments were made?

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 A6: Except for the last payment made on 19
February 2014, I was not connected with [defendant]
Elegant then when the fuel transaction and most of
the payments thereto were made x x x.6

The same fact that the witness was not yet employed by
defendant Elegant in 2012 and 2013 was confirmed by the said
witness in her cross examination, to wit:

Q: [You were] employed sometime in January

2014 as Corporate Secretary[,] am I correct?

A: Yes, Sir.7

Considering that the witness only came to the employ of

defendant Elegant almost a year after the happening of the last
transaction in question between Plaintiff and defendants, it is
impossible for the said witness to have personal knowledge on the
matters in her testimony.

Verily, Section 1, Rule 128 of the Rules of Court clearly states

that:

Section 1. Evidence defined. Evidence is the

means, sanctioned by these rules, of ascertaining in the
judicial proceeding the truth respecting a matter of fact.

Further, Section 36, Rule 130-C of the Rules of Court

categorically provides that:

Section 36. Testimony generally confined to

personal knowledge; hearsay excluded. A witness can
testify only to those facts which he knows of his personal
knowledge; that is, which are derived from his own
perception, except as otherwise provided in these rules.

6 Judicial Affidavit of Maribel C. Cruz, answer to Question Nos. 2 and 6. Emphasis ours.
7 TSN dated 11 November 2015, page 6.
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 In the instant case, defendants solely relied on the testimony of
Ms. Maribel C. Cruz, its lone witness, and the pieces of documentary
evidence she was asked to identify. It is clear, therefore, that the
evidentiary weight of defendants evidence-in-chief is nil since it is
crystal clear that Ms. Maribel C. Cruz is not competent to testify on
the allegations stated in defendants Answer and Omnibus Motion
and the matters of her testimony as she has no personal knowledge
on what actually transpired in 2012 and 2013, nor can she identify
such documents attached to her Judicial Affidavit and presented in
open court for identification such as the BDO checks.

Furthermore, defendants, except the documents presented as

documentary evidence in support to their allegation that they have
already paid at least Php930,000.00, did not present any proof of
excess in the attachment made against them. They failed to
substantiate the said allegation wherein they could have presented
evidence of the buses value (there is an allegation that the busses
were purchased at One Million Eight Hundred Thousand Pesos
(Php1,800,000.00) each, but without proof to substantiate this; and
considering that assets depreciate, there is no evidence of the buses
current value) vis--vis the principal claim of the Plaintiff in the case
at bar.

The basic rule is that he who alleges must prove his

case.8 Since it is the defendants who are now offering an affirmative
and positive allegation, they have the burden of evidence (as
distinguished from burden of proof) to prove the value of the attached
personal properties as well as the existence of excessive attachment.
Without this satisfying proof, the attachment made against
defendants remain to enjoy the presumption of regularity since the
Court and the attaching Sheriff have in their favor the presumption of
8 Lim vs. Equitable PCI Bank, GR No. 183918, 15 January 2014, plus a long list of similar settled
jurisprudence. Emphasis supplied.
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regularity in the performance of official duties, which defendants
failed to rebut.

Finally, it is not true that defendants have already paid at least

Php930,000.00 of their outstanding obligation to Plaintiff. This
argument will be thoroughly discussed later.

Defendants have not yet paid

their outstanding obligation to
Plaintiff in the amount of
Php1,000,029.58, representing
unpaid deliveries of fuel
products, or any portion
thereof.

Defendants argued that if there was an unpaid delivery, the

amount would be minimal since they have already paid at least
Php930,000.00 as evidenced by BDO checks that supposed to show
that defendants had made several deposits to Plaintiffs account as
payment to their obligation to the latter.

This allegation of the defendants, however, was rebutted by

Plaintiff through its witness, Mr. Joseleo J. Jiro.

Unlike Ms. Maribel C. Cruz, Mr. Jiro had been with the Plaintiff
long before the happening of the transactions in question between
Plaintiff and defendants and he has personal knowledge on the facts
surrounding the instant case for he personally transacted with
defendants.

Mr. Jiro categorically stated that although the checks presented

by defendants, through Ms. Cruz, were payments to Plaintiff, such
checks were, in truth and in fact, applied as payments to Plaintiff for

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previous deliveries made in favor of defendants, particularly the
deliveries made on 3 November 2012, 9 November 2012, and 4
December 2012, and not to the deliveries made on 21 November
2012, 29 December 2012, 12 January 2013, 29 January 2013, and 9
February 20139. Such transactions are evidenced by Delivery Receipt
Nos. 1191110, 1193411, and 1203212. This makes sense since the said
payments almost match with the amounts in the said DRs. This very
significant blunder on the part of defendants negates any credibility
as to the truthfulness of their claim that they have partially paid the
Php1,000,029.58 obligation under the instant case. Falsus in uno,
falsus in omnibus.

This allegation made by defendants that the said checks were

payments to the deliveries in question is just a blatant attempt to
mislead this Honorable Court. This goes to show that defendants do
not intend to pay the Plaintiff whatever is due to it.

Defendants are still liable to

Plaintiff in the amount of
Php1,000,029.58.

As discussed above, it has been shown during the presentation

of evidence that the alleged payment made by defendants to Plaintiff
were actually made as payment to transactions other than the
transactions mentioned in the instant case. As such, defendants
failed to buttress their affirmative defense and to impeach the claim of
the Plaintiff.

Firstly, Plaintiff was able to prove that there were transactions

made between the Plaintiff and defendants from 21 November 2012
9 Judicial Affidavit of Joseleo J. Jiro, Answer to Question No. 36.
10 Exhibit M for the Plaintiff.
11 Exhibit N for the Plaintiff.
12 Exhibit O for the Plaintiff.
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and 9 February 2013, and that the same are not yet paid. Plaintiff
was also able to prove that it demanded from defendants the
payment of their outstanding obligation, to no avail.

Considering the evidence at hand, Plaintiff was able to prove its

claim by at least preponderance of evidence.

Preponderance of evidence is defined as the weight, credit,

and value of the aggregate evidence on either side and is usually
considered to be synonymous with the term greater weight of the
evidence or greater weight of the credible evidence 13.
Preponderance of evidence only requires that evidence be greater
or more convincing than the opposing evidence 14. In civil cases such
as the instant case, the plaintiff, in order to successfully claim against
the defendant, must prove his/her/its claim by preponderance of
evidence.

Verily, Section 1, Rule 133 of the Rules of Court explicitly states

that:

Section 1. Preponderance of evidence, how

determined. In civil cases, the party having the burden of
proof must establish his case by preponderance of
evidence. In determining where the preponderance or
superior weight of evidence on the issues involved lies,
the court may consider all the facts and
circumstances of the case, the witnesses manner of
testifying, their intelligence, their means and
opportunity of knowing the facts to which they are
testifying, the nature of the facts to which they testify,
the probability or improbability of their testimony,
their interest or want of interest, and also their
personal credibility so far as the same may legitimately
appear upon the trial. The court may also consider the

13 Ogawa vs. Menigishi, GR No. 193089, 9 July 2012 citing Amoroso vs. Alegre, GR No. 142766, 15 June
2007.
14 Duarte vs. Duran, GR No. 173038, 14 September 2011, citing the case of Booc vs. Five Star Marketing
Co., Inc., GR No. 157806, 22 November 2007.
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 number of witnesses, though the preponderance is not
necessarily with the greater number.15

It is clear that in the case at hand, the Plaintiff has successfully

established its cause of action against the defendants by
preponderance of evidence at least (or even more). Based on the
evidence at hand, Plaintiff has far greater evidence than the
defendants, who have very little to no evidence at all, that tend to
prove the formers claim over the latter.

Such preponderant evidence is composed of, among others,

the following pieces of evidence and testimony:

Evidence Proved claim

Delivery Receipt No. 211983 and

its counter receipt.16
Plaintiff delivered to defendants
12,000.00 Liters of Automotive
Diesel on 21 November 2012; that
said fuel had been duly delivered
to defendants.

Delivery Receipt No. 12111 and On 29 December 2012,

its counter receipt.17 defendants again ordered fuel
from Plaintiff, this time of 4,000
Liters of Automotive Diesel with
remaining balance worth Php.
80,860.00 at Diezmo Road, Brgy.
Pulo, Cabuyao, Laguna, which
delivery was duly made.

Delivery Receipt No. 12154 and On 12 January 2013, defendants

its counter receipt.18 again ordered 4,000 liters of
15 Emphasis ours.
16 Exhibits C and C-1 for the Plaintiff.
17 Exhibits D and D-1 for the Plaintiff.
18 Exhibits E and E-1 for the Plaintiff.
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 automotive diesel from Plaintiff at
Diezmo Road, Brgy. Pulo,
Cabuyao, Laguna, which delivery
was duly made.

Delivery Receipt No. 12213 and On 29 January 2013, defendants

its counter receipt.19 again ordered 4,000 liters of
automotive diesel from Plaintiff at
Diezmo Road, Brgy. Pulo,
Cabuyao, Laguna, which delivery
was duly made.

Delivery Receipt No. 12264 and On 9 February 2013, defendants

its counter receipt.20 ordered 6,000 liters of automotive
diesel from Plaintiff and the same
was duly delivered by the latter to
the former at Diezmo Road, Brgy.
Pulo, Cabuyao, Laguna.

Delivery Receipts Nos. 11911, Plaintiff had been making previous

11934, 12032.21 deliveries of fuel products in favor
of defendants even prior to
November 2012 to which the
claimed payments made by
defendants respectively refer;
that, in view of the same, the
defendants claim of having the
deliveries subject of the instant
complaint being substantially paid
is unmeritorious, to say the least.

Judicial Affidavit of witness, That:

Joseleo J. Jiro, as his direct
1. Plaintiff had delivered to
testimony before the Honorable
defendants on 21 November
Court.22
19 Exhibits F and F-1 for the Plaintiff.
20 Exhibits G and G-1 for the Plaintiff.
21 Exhibits M, N, and O for the Plaintiff.
22 Exhibits P and P-1 for the Plaintiff.
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 2012 to 9 February 2013;
2. Prior to 21 November 2012,
there had also been several
deliveries;
3. Defendants have not yet
settled their outstanding
obligation to Plaintiff in
connection with fuel
deliveries from 21
November 2012 to 9
February 2013;
4. The payments being
asserted by defendants had
been paid to Plaintiff were
payments to deliveries prior
to 21 November 2012 and
not to the transactions in
question.

Plaintiffs evidence, particularly the testimony of Mr. Jiro, was

not rebutted by defendants. The declarations made by Mr. Jiro and
his identification of the pieces of documentary evidence supporting
Plaintiffs claim withstood the cross and re-cross examinations
conducted by defendants, through their counsel, on 9 February 2017.
Furthermore, defendants assertion that they have already paid the
Plaintiff is incredible in the first place since they did not even react to
Plaintiffs demand letters23. If indeed they have already paid their
obligation, the supposed logical reaction from defendants was to
dispute the claim. Defendants non-reaction to the demand letters,
despite due receipt, is contrary to human experience.

On the other hand, defendants failed to produce even an iota of

evidence to support their claim and/or to impeach or counter the
Plaintiffs evidence-in-chief. As stated above, defendants presented a

23 Please see redirect examination of Joseleo J. Jiro, TSN dated 9 February 2017, page 11.
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witness their lone witness who has no personal knowledge on the
matter. They likewise offered no evidence as to the value of the
buses and that there was excessive attachment, and that, ultimately,
they have no substantive outstanding obligation to Plaintiff. They did
show evidence of payment, although the same was identified by a
witness who has no personal knowledge on the matter, not to
mention that it was proven by the Plaintiff that such payments to
Plaintiff by defendant were for deliveries prior to 21 November 2012
and not for the transactions in question.

Nevertheless, even if we give weight to the testimony of Ms.

Cruz, still, the Plaintiff has greater CREDIBLE EVIDENCE than the
defendants.

Plaintiff is entitled to claim from

defendants One Hundred
Thousand Pesos
(Php100,000.00) for attorneys
fees and litigation expenses,
Fifty Thousand Pesos
(Php50,000.00) for exemplary
damages, and the cost of suit.

As a consequence of Plaintiff establishing its claims against

herein defendants, judgment should not just be confined to the
principal claim of the Plaintiff.

An amount of Php50,000.00 shall be awarded to Plaintiff, which

is warranted by defendants act of bad faith in a wanton, reckless,
and malicious manner that led to the filing of the instant case. In the
same fashion, Plaintiff is also entitled to claim from defendants the
amount of Php100,000.00 for attorneys fees. Attorneys fees are
awarded if exemplary damages are likewise awarded 24.
24 Article 2208 (1), Civil Code.
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 Plaintiff is also rightfully entitled to claim against defendants the
cost of filing the instant case.

VII. PRAYER

WHEREFORE, premises considered, it is respectfully prayed

before the Honorable Court that judgment be rendered:

1. Denying defendants Omnibus Motion dated 13 November

2014 (regarding the Motion to Lift Attachment and to Lift
Excessive Attachment) for lack of merit;

2. Ordering the defendants ELEGANT SHUTTLE SERVICES,

INC. and ALICIA J. KHO to pay the Plaintiff MAXIPACIFIC
CORPORATION the amount of Php1,000,029.58,
representing unpaid deliveries of fuel products; and

3. Ordering the defendants to pay the Plaintiff the amount of

Php50,000.00 for exemplary damages, Php100,000.00 for
attorneys fees, and the cost of suit.

Other reliefs that are just and equitable under the premises are
likewise being prayed for by the Plaintiff before the Honorable Court.

Respectfully submitted.

Naic, Cavite for Caloocan City, Metro Manila; 27 June 2017.

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 MAGTIBAY & MAGTIBAY LAW OFFICE
Counsel for the Plaintiff
066 Talisay Street, Diosomito Subdivision
Naic, Cavite

By:

FREDERICK FERMIN H. MAGTIBAY

Attorneys Roll No. 49007
IBP No. 1063430-1.20.17 Cavite
PTR No. 9336957 -5-8-17 Cavite
MCLE V- 0022820- 7.4.16
Email: mags_law19@yahoo.com
Contact Number: 0922-813-3032

Copy furnished by registered mail:

ATTY. ANGELO CASTRO DE ALBAN

Counsel for defendants
4th floor , Ruiz-Entena Building
650 Quezon Avenue, Quezon City

EXPLANATION

Due to distance and lack of messengerial personnel, a copy of

this Formal Offer of Evidence had been served unto the opposing
parties through registered mail.

FREDERICK FERMIN H. MAGTIBAY

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