REPUBLIC OF THE PHILIPPINES

NATIONAL CAPITAL JUDICIAL REGION

METROPOLITAN TRIAL COURT
MAKATI CITY
BRANCH 64

PEOPLE OF THE PHILIPPINES

-versus- CRIM. CASE NO.

M-MKT16-03740CR
For: Light Oral Defamation

LUKE IVAN B. MORO

Accused.

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ENTRY OF APPEARANCE AND MOTION TO DISMISS

(WITH MOTION TO DEFER ARRAIGNMENT AND SUSPEND PROCEEDINGS)

Accused, LUKE IVAN B. MORO, Filipino Citizen, of legal age, and resident of 3600 P.
Cortez St., Brgy. Pinagkaisahan, Makati City, through the undersigned counsel respectfully
moves this Honourable Court to dismiss the subject criminal case for failure to comply with the
Rule prescribed under Section 18 of the Rules on Summary Procedure or more particularly
known as the requirement on Referral to Lupon.

In the spirit of full disclosure, Accused further states that his counsel is a government
lawyer properly authorized to represent him in this particular case. For the reference of this
Honourable Court, a copy of the said authority is attached as Annex “A”.

Further, in support of this motion, accused, by counsel respectfully submits the

following:

TIMELINESS OF THE MOTION

The order of this Honourable Court, hereby attached as Annex “B” was received by the
Accused on 06 September 2016. Under the Rules of Summary Procedure and as indicated in
the Order issued by this Honourable Court, the Accused has ten (10) days upon receipt of the
Order to file his Counter-Affidavit or where applicable, a Motion to Dismiss provided based on
lack of jurisdiction or failure to comply with the requisite Referral to Lupon. As to the date of
receipt by the Accused duly considered, this Motion to Dismiss has been timely filed.

PRELIMINARIES

1. The above entitled case is set for arraignment on 06 December 2016 at 8:30 in the
morning;

2. The basis in filing the present information is the Resolution of the Office of the City
Prosecutor of Makati City dated 25 July 2016;

3. On 11 August 2016, the Accused filed a Motion for Reconsideration against the 25 July
2016 Resolution of the Office of the City Prosecutor which Motion for Reconsideration is
still pending for adjudication;

4. In order not to render the said Motion for Reconsideration moot and academic and in
consonance with Section 56 of the Manual of Prosecutors, the Accused most
respectfully moves that his arraignment scheduled on 06 December 2016 be deferred
and/or the proceedings of the above-entitled case be held in abeyance/suspended until
the final resolution of the Motion for Reconsideration;

5. In the alternative, where the Honourable Court choose to exercise its discretion to
proceed with the case, the Accused respectfully moves that his arraignment be deferred
until this motion to dismiss is ruled upon by the Honourable Court;

6. The present motion is filed not for the purpose of delaying the early disposition of the
instant case but to secure the herein Accused against hasty, malicious, and oppressive
prosecution, and to protect him from an open and public accusation of crime, from
trouble, expense and anxiety of a public trial and also to protect the State from useless
and expensive trial;

ANTECEDENT FACTS

7. Accused at the time of the incident subject of the complaint in this criminal case was the
Officer-in-Charge, Publications Office of the University of Makati where he is still
currently employed as Director of the Research Center.
8. Private Complainant, Dr. Teresa Diez Solero, at the time of the incident subject of the
complaint in this criminal case was a graduate programs lecturer of the University of
Makati where she is still currently employed performing the same function.

9. That the incident subject of the complaint of this criminal case arose from when the
Accused, in the faithful performance of his duty as Officer-in-Charge, Publications Office
issued letters of rejection in two occasions against the research paper of Dr. Juvy S.
Llorca, the daughter of the private complainant who is also a faculty of the University of
Makati. The first letter of rejection is dated 24 August 2015 and a copy of the said letter
is hereby attached as Annex “C”. The second letter of rejection is dated 03 November
2015 or three days prior to the incident and hereby attached as Annex “D”.

10. That on 05 November 2015, Dr. Llorca sought audience with the Accused to clarify the
recommendations of the Accused in his 03 November 2015 rejection letter. In the said
meeting, Accused merely reiterated the areas Dr. Llorca needs to improve on her
research paper before the Accused can consider it acceptable for publication.

11. That to the surprise of the Accused, Private Complainant, Dr. Teresa Diez Solero on 06
November 2015 came to his office purportedly to deliver a letter of Dr. Llorca dated 05
November 2015 but obviously as can immediately be seen from her spiteful behaviour
at that time, to intimidate the Accused into approving the publication of Dr. Llorca’s
research paper. Private complainant being a former official (former Dean) of the
University of Makati has the power and personality to intimidate employees. For the
reference of the Honourable Court, a copy of the 05 November 2015 letter of Dr. Llorca
is hereby attached as Annex “E”.

12. That Accused stood firm in his decision that Dr. Llorca’s research paper needs further
improvement before it can be considered for publication and refused to receive the
letter of Dr. Llorca being handed by Private Complainant. Accused admitted that he
advised Private Compainant that her daughter Dr. Llorca is old enough to handle her
own affairs and that Private Complainant should not interfere with the Accused’
rejection of Dr. Llorca’s research paper as Private Complainant is not a party thereto.

13. Accused vehemently denies he uttered the words “Hindi kita sasantuhin pakialamera!”
during the incident. Accused further denies that he motioned to physically attacked
private complainant. The truth of the matter is the Accused merely explained to the
Private Complainant that he cannot received the letter as the matter is between him
and Dr. Llorca to which the Private Complainant is not a party thereto.

14. In a letter dated 09 November 2015 addressed to Prof. Ramila Cruzado, CPA, Officer-in-
Charge, Office of the President of the University of Makati, private complainant filed a
complaint against the Accused. For the reference of the Honourable Court, a copy of
the said letter complaint dated 09 November 2015 is hereby attached as Annex “F”.
15. The Accused was never ordered by the management of the University of Makati to
answer the letter complaint of the Private Complainant.

16. On 02 February 2016, the Accused received an endorsement letter from the Office of
the President of the University of Makati and attached therewith is the Complaint
Affidavit of the Private Complainant before the Office of the Office of the Ombudsman
charging the Accused of “Gross Violation of R.A. 7432”. For the reference of the
Honourable Court, a copy of the said letter of endorsement and Complaint Affidavit are
hereby attached as Annex “G” and Annex “G-1” respectively.

17. In a letter dated 14 January 2016, Atty. Leilanie Bernadette C. Cabras of the Office of the
Ombudsman referred the complaint of the Private Complainant to the Honourable City
Prosecutor of the City of Makati pursuant to the Memorandum of Agreement dated 29
March 2012 entered into by and between the Office of the Ombudsman and the
Department of Justice. For the reference of the Honourable Court, a copy of the said
letter is hereby attached as Annex “H”.

18. On 12 April 2016, the Accused received a subpoena dated 01 April 2016 for the
complaint filed by the Private Complainant for Gross Violation of R.A. No. 7432 docketed
as NPS-XV-05-INV-16C-1091 and signed by Assistant City Prosecutor Bernard Rosario
ordering him to appear for preliminary investigation on April 13 and 20, 2016.

19. On 13 April 2016, Accused attended the preliminary investigation for the
aforementioned case where he obtained a copy of the Complaint Affidavit. Accordingly
on 20 April 2016, Accused filed his counter-affidavit. On 26 April 2016, Private
Complainant filed her Reply.

20. On 04 August 2016, Accused received a copy of the Resolution dated 25 July 2016 of the
Office of the City Prosecutor on the case NPS-XV-05-INV-16C-1091 finding him not liable
for Gross Violation of R.A. 7432 but for Light Oral Defamation.

21. On 11 August 2016 and within the period prescribed by the Rules, Accused filed a
Motion for Reconsideration assailing the Resolution dated 25 July 2016 on the case NPS-
XV-05-INV-16C-1091.

22. On 06 September 2016, Accused received the Order of this Honourable Court requiring
him to submit his counter affidavit within ten (10) days from receipt thereof.

DISCUSSION
23. At the onset, the Accused would like to emphasize that while the original designation of
the complaint for Gross Violation of R.A. 7432 was not within the coverage of barangay
conciliation, the alleged commission of light oral defamation upon which the
information was based is well within the coverage of the barangay conciliation. The
Accused would like to emphasize that Violation of Republic Act No. 7432 is punishable
by a fine of NOT LESS THAN fifty thousand pesos (PhP50,000.00) but not more than One
hundred thousand pesos (PhP100,000.00) while Adm. Circular No. 14-93 exempts from
the requirements of the barangay conciliation proceedings cases for offenses for which
the law prescribes a fine over five thousand pesos (PhP5,000.00).

24. The alleged commission of light oral defamation being punishable by imprisonment of
arresto menor or a fine not exceeding P200.00 clearly brings the case at bar within the
coverage of barangay conciliation. Notwithstanding this requisite, the assigned
Assistant City Prosecutor merely stated in the Resolution that:

“Lastly, respondent failed to state his residential address in his affidavit, thus,
this Office could not determine the propriety of the case undergoing barangay
conciliation proceedings.”

-Paragraph 3, page 3 of the Resolution

(Emphasis supplied)

25. The above quoted excerpt of the Resolution suggests that the determination of the
propriety of the case undergoing barangay conciliation proceedings is dependent on the
information to be provided by the Accused. This has no basis in law and jurisprudence.
To the contrary, the obligation to convey to the Honourable Office of the Prosecutor the
information on whether the complaint has complied with the requisite barangay
conciliation proceedings lies not with the Accused but with the Private Complainant and
in case of FAILURE BY THE PRIVATE COMPLAINANT to do the same, the jurisprudential
ruling dictates that the proper action is dismissal of the complaint. To this, the ruling of
the Supreme Court in Leticia B. Agbayani vs. Court of Appeals, Department of Justice
and Loida Marcelina J. Genabe, G.R. No. 183623, 25 June 2012 is controlling, to wit:

“The compulsory process of arbitration is a pre-condition for the filing of

the complaint in court. Where the complaint (a) did not state that it is
one of excepted cases, or (b) it did not allege prior availment of said
conciliation process, or (c) did not have a certification that no conciliation
had been reached by the parties, the case should be dismissed.

- Agbayani vs. CA
- supra.
 - (emphasis supplied)

26. In the case at bar, the complaint (a) did not state that it is one of excepted cases, or (b)
it did not allege prior availment of said conciliation process, or (c) did not have a
certification that no conciliation had been reached by the parties and yet, in complete
contrast to the established ruling of the Supreme Court as quoted above, curiously the
Honourable Office of the Prosecutor did not dismiss the complaint but rather stated
that “this Office could not determine the propriety of the case undergoing barangay
conciliation proceedings”.

27. It is interesting to note that the ruling in Agbayani vs. CA is very much applicable in the
case at bar as it is also a case of Slander. It is further interesting to note that the
assigned Assistant City Prosecutor is not ignorant of the case Agbayani vs. CA as the
same was cited in the assailed Resolution, particularly in page 3 thereof.

28. Also, the assigned Assistant City Prosecutor is not deprived of any remedy under the
rules should he really obsessed in finding out the Accused’s residential address. To this
end, Section 3(e) of Rule 112 of the Rules of Court is enlightening, to wit:

“(e) The investigating officer may set a hearing if there are facts and
issues to be clarified from a party or a witness. The parties can be
present at the hearing but without the right to examine or cross-
examine. They may, however, submit to the investigating officer
questions which may be asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the
counter-affidavits and other documents or from the expiration of the
period for their submission. It shall be terminated within five (5) days.”

- Sec. 3(e), Rule 112,

- Rules of Court
- (emphasis supplied)

29. As provided by the rules, the assigned Assistant City Prosecutor could have conducted a
clarificatory hearing where he could have determined the Accused’s residential address
to satisfy his desire for such information.

30. The Supreme Court has in fact made it a duty of the Prosecutor to determine if referral
to Lupon has been made. To this, the ruling laid down in Uy vs. Contreras, G.R. 111416,
26 September 1994 is instructive, to wit:
 “The Office of the Provincial Prosecutor of Rizal should have exerted
enough diligence to inquire from the private respondents if prior referral
to the lupon was necessary before filing the informations.”

- Uy vs. Contreras
- Supra.
- Emphasis supplied

31. Moreover, is the Accused’s residential address really necessary before the Honourable
Office of the Prosecutor could determine the propriety of the case undergoing barangay
conciliation proceedings? Are the facts contained in the complaint affidavit alone not
sufficient for the Honourable Office of the Prosecutor to determine on the propriety of
the case undergoing barangay conciliation proceedings?

32. In the caption of the Private Complainant’s complaint affidavit, it stated the title as “Dr.
Teresa Diez Solero, Graduate Lecturer, College of Education (COE), University of Makati
(UMAK), Fort Bonifacio, City of Makati, Complainant versus Mr. Luke Ivan Moro, UMAK
Employee, Assigned Head Publication (sic), University of Makati (UMAK), Fort Bonifacio,
City of Makati, Respondent”.

33. As clearly indicated in the title, this is a dispute between two employees of the
University of Makati. One, a Graduate Lecturer from the College of Education and the
other, the Head of Publication. A dispute between co-workers. Under Section 409 (d)
of the Local Government Code of 1991, disputes “arising at the workplace where the
contending parties are employed or at the institution where such parties are enrolled
for study, shall be brought in the Barangay where such workplace or institution is
located.” (emphasis supplied).

34. Thus, the facts that the Private Complainant and the Accused are both employed at the
University of Makati and that the dispute arose at the workplace are sufficient to
determine that the Complaint should comply with the requisite barangay conciliation
proceedings and that the proper venue should be the barangay where the University of
Makati is located.

35. The fact that both the Private Complainant and the Accused are employees of the
University of Makati are not alien to the assigned Assistant City Prosecutor as the 2 nd
and 3rd Paragraph of Page 1 of the Resolution states the following:
 “Complainant avers that she is a retired dean of the College of Arts,
Sciences and Education of and presently, a graduate lecturer at the
University of Makati. …..xxxxxx…”

“In August 2015, ………..xxxxxxxx………However, Llorca received a letter

from the respondent who was in charge of Publications in the
university, telling her that respondent was denying the publication of her
work.

- 2nd and 3rd Paragraph

- Page 1 of the Resolution
- (emphasis supplied)

36. That disputes arising in the workplace can now be brought before the Lupon is an
innovation under the Local Government Code which broadened the authority of the
Lupon as observed by the Supreme Court in Uy vs. Contreras, to wit:

“The second feature, which is covered by paragraph (d), Section 409 of

the Local Government code, also broadens the authority of the lupon in
the sense that appropriate civil and criminal cases arising from incidents
occurring in workplaces or institutions of learning shall be brought in
the barangay where such workplace or institution is located. That
barangay may not be the appropriate venue in either paragraph (a) or
paragraph (b) of the said section. This rule provides convenience to the
parties. Procedural rules including those relating to venue are designed
to insure a fair and convenient hearing to the parties with complete
justice between them as a result. Elsewise stated, convenience is
the raison d'etre of the rule on venue.”

- Uy vs. Contreras
- Supra
- Emphasis supplied

37. That the defect of failure to comply with the requirement of barangay conciliation is no
longer a curable defect as the alleged felony of light oral defamation has already
prescribed. The Honourable Court is reminded that the alleged crime committed in the
case at bar is light oral defamation. Under Art. 90 of the Revised Penal Code, the
offense of oral defamation shall prescribe in six months and light offenses prescribe in
two months. As light oral defamation is punishable by arresto menor or a fine not
exceeding 200 pesos as provided for under Art. 358 of the Revised Penal Code, it is
considered a light felony under Art. 9 of the same Revised Penal Code. Following the
long standing doctrine that penal laws should be construed in favor of the accused, light
oral defamation’s prescription is two months.
38. For failure to file a complaint before the Lupon and instead filing directly with the
Ombudsman and which complaint was later referred to the Office of the Prosecutor, the
prescriptive period for the alleged light oral defamation was never effectively
interrupted. As the incident where the alleged light oral defamation was committed
occurred on 06 November 2015, more than ten (10) months has already lapsed since
then.

39. As a matter of fact, when the case was forwarded to the Office of the Prosecutor
(assuming it was forwarded on the date indicated in the letter) on 14 January 2016, the
alleged act of light oral defamation has already lapsed for two (2) months and eight (8)
days.

40. And even when the Private Complainant herself filed the complaint before the Office of
the Ombudsman, the date indicated marked received by the Office of the Ombudsman
is 07 January 2016 which means the alleged act of light oral defamation has already
lapsed for two (2) months and one (1) day.

41. Both the filing before the Office of the Ombudsman and the referral to the Office of the
Office of the Prosecutor, however, did not effectively interrupt the running of the
prescriptive period. As to the Office of the Ombudsman, it does not have jurisdiction
over defamation cases and accordingly, filing before the same does not interrupt the
running of the period. As to the Office of the Prosecutor, whether or not filing before
the same without the requisite barangay conciliation interrupted the running of the
period is immaterial as the alleged act of light oral defamation has already prescribed by
then.

WHEREFORE, premises considered, and in the interest of justice and fair play, it is most
respectfully prayed of this Honourable Court that:

a. the arraignment of the Accused set on 06 December 2016 and/or proceedings in

the present case be deferred or suspended until the adjudication of the Office of
the Prosecutor of the Motion for Reconsideration of the Accused of its
Resolution dated 25 July 2016;
b. or in the alternative, the arraignment of the Accused set on 06 December 2016
and/or proceedings in the present case be deferred or suspended until the
order of the Honourable Court on this Motion to Dismiss.
c. Other reliefs and remedies which are just and equitable under the premises are
likewise prayed for.

Makati City, 13 September 2016.

 KARL KRISTJAN B. MORO
Roll No. 64581
IBP No. 1027432/ 05 Feb. 2016/Pasig
PTR No. 5482852 / 02 May 2016/Makati
MCLE V-0010922 /14 Apr. 2019
3600 P. Cortez St., Pinagkaisahan
Makati City 1213
Mobile No. 0908-2534713

NOTICE OF HEARING

The Clerk of Court

Metropolitan Trial Court
Branch 64, Makati City

OFFICE OF THE CITY PROSECUTOR

Makati City

GREETINGS:

Please be notified that the foregoing ENTRY OF APPEARANCE AND MOTION TO DISMISS
(WITH MOTION TO DEFER ARRAIGNMENT AND SUSPEND PROCEEDINGS) is set for hearing on
22 September 2016 at 8:30 in the morning for the consideration and approval of the
Honourable Court.

KARL KRISTJAN B. MORO

CC: OFFICE OF THE CITY PROSECUTOR

HALL OF JUSTICE
MAKATI CITY