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[A.M. OCA IPI No. 04-2057-RTJ.� July 11, 2005]
SONGCO vs. DE GUZMAN
SECOND DIVISION
Sirs/Mesdames:
Quoted hereunder, for your information, is a resolution of this Court dated JUL 11 2005.
A.M. OCA IPI No. 04-2057-RTJ (Catherine B. Songco vs. Judge Elsa I. de Guzman.)
Considering the Report of the Office of the Court Administrator, to wit:
In a Verified Complaint dated July 23, 2004, the complainant Catherine B. Songco charges Judge Elsa de Guzman, Judge of the Regional Trial Court, Branch 89, Quezon City, with gross misconduct, gross ignorance of the law of procedure, dishonesty and violation of the Anti-Graft and Corrupt Practices Act.
Complainant states that on March 31, 2004, she filed an application/petition for temporary and permanent protection order under Republic Act No. 9262, otherwise known as the Anti-Violence Against Women and their Children Act against Antonio Cabangon Chua. The petition was assigned to Branch 107, RTC, Quezon City, presided by Hon. Judge Rosalina L. Luna Pison. On June 1, 2004, Judge Pison issued a Temporary Protection Order (TPO) for thirty (30) days to ensure the safety and protection of complainant as petitioner in the said case, and her children.
On June 2, 2004, or the day following the issuance of the Order, Judge Pison voluntarily inhibited herself from trying the petition. The case was re-raffled to Hon. Judge Teodoro Bay who likewise inhibited himself and the case was re-raffled to herein respondent Judge Elsa I. de Guzman.
On June 16, 2004, complainant, thru counsel, filed a motion in the case for issuance of a Permanent Protection Order (PPO) and set it for hearing on June 25, 2004. On the last mentioned date, Atty. Katrina Legarda appeared and manifested that she came to court simply because she received a copy of the motion of complainant's counsel and not for the purpose of submitting the person of Antonio Cabangon Chua to the jurisdiction of the court. Instead of hearing complainant's motion, respondent Judge de Guzman allowed Atty. Legarda to move to cite complainant in contempt of court for allegedly violating the confidentiality rule of Section 44 of R.A. 9262. Respondent Judge also ordered (a) the extension of the Temporary Protection Order (TPO) for another 30 days; (b) complainant to comment on the motion of Atty. Legarda within 15 days from receipt of the order; (c) Atty. Legarda to reply within 5 days from receipt of the comment; and (d) observance by all court personnel as well as the parties of the confidentiality rule under Section 44 of R.A. 9262.
On July 9, 2004, Atty. Francis Allan A. Rubio of the FORTUN, NARVASA and SALAZAR Law Office, who earlier had entered its appearance as counsel for Cabangon Chua on June 2, 2004, filed an urgent application for Temporary Restraining Order (TRO) to restrain the airing of the Cathy Songco Story in the television program Magandang Gabi Bayan of ABS-CBN Channel 2. The urgent application for TRO dated July 9, 2004 was received at the respondent's court at 9:25 a.m. of said date. The complainant's counsel who was not aware of the filing of the application for TRO was in court at that time to file complainant's Comment and Omnibus Motion. When the respondent judge noticed counsel's presence she instructed the latter to stay, wait for Antonio Cabangon Chua who was on his way to court to testify, and was made to participate in the proceedings. In the afternoon of the same day, at 1:25 p.m. complainant thru her counsel submitted her Urgent Manifestation and, thirty minutes thereafter, filed her opposition to the application for TRO. Later in the afternoon of the same date, the respondent Judge issued a TRO, ordering ABS-CBN, their agents, etc to CEASE and DESIST from airing the Cathy Songco Story in Magandang Gabi Bayan on Saturday, July 10, 2004 at its usual airing time.
On July 12, 2004, the Comment and Omnibus Motion of complainant was scheduled for hearing. Before the hearing started, complainant's counsel observed that Atty. Katrina Legarda was in and out of the chamber of respondent judge many times. Later, in open court, respondent Judge ordered Cabangon Chua to pay the tuition fees of his children with complainant Cathy Songco but despite constant follow-up of complainant no written order for such payment was issued until July 20, 2004 when the respondent issued an order granting partial satisfaction of the relief prayed for by complainant in her Omnibus Motion. The said Order was mailed only on July 21, 2004, the day a motion to inhibit the respondent judge was received by the court.
The complainant's motion for issuance of a Permanent Protection Order (PPO) which she filed on June 16, 2004 and set for hearing on June 25, 2004 was not actually heard on the said pre-set date despite the mandatory provisions of R.A. 9262. And despite several hearings on the motion no PPO was issued by the respondent.
Complainant thus prays that respondent judge be sanctioned for the following:
(a) Failure to issue a Preliminary Protection Order (PPO) within the reglementary period provided in� R.A. 9262;
(b) Allowing FORTUN, NARVASA & SALAZAR to argue the Urgent Application for Temporary Restraining Order without the presence of adverse lead counsel Katrina Legarda and without notice to the parties;
(c) Impropriety in allowing Atty. Legarda to meet her in her chamber;
(d) Propensity to act with dispatch on every motion of the respondent Cabangon Chua while allowing complainant's motion to remain unacted upon.
COMMENT dated September 7, 2004 of the Respondent.
Stripped of non-essentials, the respondent's comment refuting the charges are as follows:
1) She admits that as of the date of her comment, September 7, 2004, she has not issued any Permanent Protective Order (PPO, for short). The non-issuance of the PPO is attributable to the complainant and her counsel, and not to the respondent because:
a)�� In the hearing of June 25, 2004, complainant's counsel instead of presenting evidence for the issuance of PPO asked for a 15-day period to comment on the oral motion of Atty. Katrina Legarda to cite her in contempt of court for allegedly violating the confidentiality rule in R.A. 9262. Further, counsel asked that the Temporary Protection Order (TPO) which was to expire on July 1, 2004 be extended for another thirty (30) day period.
b)�� On July 12, 2004, in the presence of counsel for both parties, the respondent set the hearing on the propriety of issuance of PPO for July 23, 2004 at 8:30 a.m. Both counsels were not available on said date and they agreed to reset the hearing on July 30, 2004 at 8:30 a.m. But on July 21, 2004, complainant's counsel filed a motion to inhibit the respondent judge from trying the case, Civil Case No. Q-04-52761. When the case was called for hearing on July 30, 2004, as previously agreed upon by the parties and their counsel, both complainant and her counsel did not appear. And when asked in open court on August 24, 2004 why she failed to appear for the July 30, 2004 hearing on the issuance of the PPO, complainant's counsel reasoned she did not� appear because of the motion for inhibition she had earlier filed on July 12, 2004.
c)�� For three (3) times, June 25, 2004, July 12, 2004 and August 30, 2004, the TPO was extended for a total period of ninety (90) days. In the Resolution of August 30, 2004, complainant was ordered to present evidence on the issuance of the PPO on September 15, 2004; in the earlier Order of September 2, 2004, complainant was asked to take the necessary steps towards the active pursuit of the main civil action.
2) Respondent maintains that she committed no error in allowing Fortun Narvasa and Salazar to argue on the application for TRO on July, 2004 sans presence or consent of lead counsel Atty. Katrina Legarda. No law or jurisprudence bars a collaborating counsel who had validly entered appearance to argue for a client without the consent or presence of the lead counsel.
It is not true that respondent heard the motion on the application for TRO on July 9, 2004 without notice to the complainant's counsel. The Notice of Hearing of the Urgent Application setting it on July 9, 2004 was indicated on page 5 of said application. It was personally served on complainant's counsel, Atty. Maria Nympha Mandagan at her address on record on July 9, 2004 and was received by a certain Pulquera Algomez. The same Notice of Hearing was served on ABS CBN Broadcasting Center on July 9, 2004 and was received by one Lito Cahanap. On top of these, Atty. Mandagan actively participated in the said July 9, 2004 TRO hearing as shown in the transcript of stenographic notes taken during the hearing.
3) Neither is it true, respondent Judge asserts, that respondent allowed Atty. Katrina Legarda to go in and out of her chamber before the hearing in the morning of July 12, 2004. Before 8:30 in the morning every hearing day, her courtroom is already full of litigants, witnesses and lawyers. On that particular day a public prosecutor and a PAO lawyer were already in court before the hearing started. It would be sheer recklessness on the part of Atty. Legarda to walk in and out of respondent's chamber in full view of these officials, lawyers and others. Moreover, respondent states that it is not her nature to entertain a counsel inside her chamber as it is against her policy except if there is a hearing in chamber.
4) The respondent judge vigorously denies that it was only the motion of Antonio Cabangon Chua, respondent in Civil Case No. Q-04-52761, that was acted upon by her with dispatch while complainant Cathy Songco's motion remains unacted upon. Complainant apparently refers to her Comment and Omnibus Motion dated July 2, 2004 which she set for hearing on July 12, 2004. In that hearing of July 12, 2004, Atty. Katrina Legarda asked for five (5) days to comment or reply. Atty. Legarda did not wait for the full five (5) days but filed her reply on the following day, July 31, 2004. On July 15, 2004, complainant filed an Urgent Manifestation praying that her prayers in her Comment and Omnibus Motion dated July 2, 2004 be granted. On the following day, July 16, 2004, the respondent judge resolved the prayers in the Omnibus Motion which she amended/corrected on July 20, 2004 after realizing that she overlooked something in the dispositive portion. Hence, there is no truth to complainant's lament that her motions were not being acted upon by the respondent. The fact was that when complainant filed her motion to inhibit the respondent on July 21, 2004, there was no single motion of complainant which was left unresolved or unattended.
EVALUATION: We find the charges to be without merit.
The provisions of R.A. 9262 in so far (sic) as material to the issues raised in this administrative complaint are the following:
"Sec. 16. Permanent Protection Orders. -
x�� x��������� x��������� x
The Court shall, to the extent possible, conduct the hearing on the merits of the issuance of a PPO in one (1) day. Where the court is unable to conduct the hearing within one (1) day and the TPO issued is due to expire, the court shall continuously extend and renew the TRO for a period of thirty days (30) at each particular time until final judgment is issued. The extended or renewed TPO may be modified by the court as may be necessary or applicable to address the needs of the applicant.
"Sec. 18.����������� Mandatory Period of Acting on Applications for Protection Orders. - Failure to act on an application for a protection order within the reglementary period specified in the previous sections without justifiable cause shall render the official or judge administratively liable."
Civil Case No. Q-04-52761 was raffled to the respondent Judge on June 4, 2004, after the issuance of a Temporary Protection Order (TPO) on June 1, 2004 by Hon. Judge Rosalina L. Luna Pison who thereafter inhibited herself from the case.
The motion for issuance of a Permanent Protection Order (PPO) was filed by the complainant on June 16, 2004 and was set for hearing on June 25, 2004. But instead of presenting her evidence on the issuance of the PPO on June 25, 2004, the complainant's counsel asked for time to comment on the oral motion of Atty. Katrina Legarda to cite her in contempt of court, and moved for the extension of the TPO which was to expire on July 1, 2004, which the respondent Judge granted. Thereafter, the following transpired as officially recounted in the Resolution of the respondent Judge on July 23, 2004.
"During hearing on the Omnibus Motion of petitioner set on July 12, 2004, the court officially informed both parties through counsel that the hearing on the propriety of converting the Temporary Protection Order (TPO) to Permanent Protective Order shall be heard on July 23, 2004 but both counsel orally informed the Court that they have another court case on said date. Hence, by their mutual agreement the hearing of Permanent Protective Order was set to July 30, 2004, at 8:30 a.m. with manifestation of Atty. Legarda that she had no objection to extend the Temporary Protective Order (TPO) for another period of thirty (30) days (p. 191, Rollo). Thus, the Court cannot be faulted for the same. It may be recalled also that the Court was constrained to extend the Temporary Protective Order (TPO) for want of sufficient time to hear it and both counsel did not object. The same is sanctioned under Sec. 16 of R.A. 9262" (page 2, Annex "M" to respondent's Comment).
On the agreed setting on July 30, 2004, complainant and her counsel did not appear. In the meantime, complainant's counsel filed a motion to inhibit the respondent Judge on July 21, 2004 which the respondent denied on July 29, 2004. Counsel filed a motion for reconsideration of the denial which was heard on August 24, 2004; when confronted on that date why she did not appear on July 30, 2004 and present her evidence on the motion for issuance of PPO, counsel reasoned she did not appear because of the motion to inhibit she had earlier filed on July 21, 2004. Until September 10, 2004, when respondent Judge filed her Comment on this administrative complaint, complainant has not presented any evidence to justify the issuance of the PPO. Clearly, therefore, the non-issuance of the PPO cannot be attributed to the respondent Judge. It is noted, however that despite the non-issuance of the PPO as of September 10, 2004, the complainant has not been left without protection considering that the Temporary Protection Order (TPO) has been extended three (3) times, June 25, 2004, July 12, 2004 and August 30, 2004 for a total period of ninety (90) days.
The respondent violated no law or rule of procedure in allowing FORTUN NAVASA and SALAZAR to appear and argue in the hearing on the application for a temporary restraining order in the absence of lead counsel, Atty. Katrina Legarda. The law firm has formally entered its appearance in the case and whether the said firm can appear and argue in any hearing of the case is purely a matter between it and its co-counsel.
The hearing in the application for temporary restraining order was not without notice to complainant's counsel. The Notice of Hearing for July 9, 2004 was served upon complainant's counsel, Atty. Maria Nympha Mandagan, at her address and received by a certain Pulguera Algomes on July 9, 2004. In fact, Atty. Mandagan was present in court on that day and actively participated in the proceedings.
The respondent Judge stoutly denies that Atty. Katrina Legarda was freely coming in and out of her chambers before the court session began on July 12, 2004. Aside from complainant's bare assertion no corroboration by evidence of any sort was presented in support of that allegation.
RECOMMENDATION:��������� It is respectfully submitted for the consideration of the Honorable Court that the instant administrative complaint against respondent Judge Elsa I. de Guzman be DISMISSED for lack of merit.
and finding the evaluation and recommendation thereon to be in accord with law and the facts of the case, the Court hereby approves and adopts the same.
ACCORDINGLY, the administrative complaint against Judge Elsa I. de Guzman is hereby DISMISSED.
SO ORDERED.
Very truly yours,
(Sgd.) LUDICHI YASAY-NUNAG
Clerk of Court
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