Civil Procedures SY 2013-2014

JKB Rm 405

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MIDTERMS
December 10, 2013
Rule 11
When to File Responsive Pleadings
Responsive Pleadings the answer to complaint, counter claim, cross
claim, third party complaint (forth, fifth), reply.

A. Answer to the Complaint:
When to file
o 15 days from the receipt of the summons
Rule: Exclude the first day include the last
o If you received the summons today, then you start
counting tomorrow. Include the last day which is the
15
th
day.
How to compete time
Effect of interruption the period to answer is deemed
interrupted upon filing of certain motions (Motion to Dismiss,
Motion for Bill of Particulars)
o When the two is filed, then you stop counting

B. Period to answer for defendant foreign corporation:
BUT There are period to answer that is more than 15 days.

EX: Filing a complaint against a foreign corporation (not resident of the
Philippines). Generally, 30 days to file an answer

Q: Can you sue a foreign corporation in the Philippines? It depends.
Note: If that foreign corporation does not have transaction in the
Philippines, It cannot be sued. The court cannot acquire jurisdiction.

If that foreign corporation has a transaction, then it can be sued. BUT
YOU MUST QUALIFY IF HE HAS A REPRESENTATIVE OR NONE:
If with resident agent summons must be served to that agent
- 15 days to answer the complaint
If without resident agent summons must be served to the
government entity authorized - 30 days to answer the
complaint

*There are agencies authorized to receive summons for these non
resident/ foreign corporation.

*So if the foreign corporation is a:
Banking Company serve through the Central Bank
Insurance Company through Insurance Commissioner
Any other business Department of Trade and Industry

Q: Is there instance when the period to anwer is longer than 30 days?
YES, SUMMONS BY PUBLICATION.
*If summon is through publication, the period to answer is 60 DAYS.

C. Answer to the amended Complaint:
if filed as a matter of right when there is no responsive
pleading is filed - 15 days FROM THE TIME OF RECEIPT OF THE
AMENDED COMPLAINT
o no need for leave of court here
o counting of the 15 days starts a new
EX: I filed a case against you. You received the summons but before you
could answer the complaint, I amended the complaint as a matter of right
(wa na ko nananghid sa court). When I amended the complaint as a
matter of right, I must give to you a copy of the amended complaint. AND
THE PERIOD TO ANSWER IS 15 DAYS FROM THE MOMENT YOU RECEIVED
THE AMENDED COMPLAINT (not from the original complaint)

Rationale: Amendment supersedes the original complaint. So forget
about the original complaint if there amendment already
So even if the period to answer the original complaint has
already expired, IT DOES NOT MATTER. What is important is the time you
received the amended complaint.

If filed not a matter of right/ judicial discretion a motion to
admit to the court the amended complaint (leave of court ran a
sya) is needed to amend the complaint
o A COPY OF THE AMENDED COMPLAINT MUST BE
ATTACHED TO THE MOTION
o The moment you receive the decision of the court
granting the motion, you only have 10 DAYS TO FILE
AN ANSWER. It is lesser because you already have so
much time to prepare.

Must an amended complaint be answered?
You MAY answer.
If as a matter of right YOU MUST ASNWER
If not a matter of right YOU NEED NOT, BECAUSE YOUR
ORIGINAL ANSWER IN THE COMPLAINT IS ALREADY
CONSIDERED YOUR ANSWER AGAINST THE AMENDED
COMPLAINT
o UNLESS, there are matters which requires an
answer

D. Answer to counterclaim or cross-claim:
A counterclaim or cross-claim must be answered within 10 days
from receipt thereof. Failure to file answer to the counterclaim is a ground
to declare the plaintiff in default. However, when the counterclaim is so
intertwined with the main action, as in the case of a compulsory
counterclaim, the answer thereof is no longer needed.
So as to the question of: whether or not a counter claim should
be answered? It depends on what kind of counter claim it is.
o If PERMISSIVE COUNTER CLIAM you have to
answer
o If COMPULSORY COUNTER CLAIM AND SO
INTERTWINED WITH THE MAIN ACTION no longer
needed.

E. Answer to third (4
th
, 5th) party complaint : 15 days
Why longer than the counter claim? Because in the counter claim, you
must file a leave of court it would take time thus giving more time to
prepare, 10 days to file an answer would be enough (THEY ARE ALREADY
PARTY TO THE CASE AT THE FIRST PLACE). Whereas here, although naa
gihapoy leave of court, you are actually bringing an outsider to the case
someone which is not a party. And that outsider must be given the right
just like the original defendant 15 days to file an answer.

F. Reply - the answer to the answer it is a pleading filed by the plaintiff
as an answer to the answer of the defendant
SIMPLIFY: Answer to the counterclaim.
Reply is not a mandatory, it is optional.
It is just an answer to the answer.
The period to file reply is 10 days from the time the defendant
file an answer

G. Answer to supplemental complaint: 10 days from receipt of the order
admitting it
Supplemental Complaint you are bringing in matter that
transpired after the original complaint was filed.
There must be a leave of court once approved the court will
issue an order to be given to the defendant HE HAS 10 DAYS
TO FILE AN ANSWER.

Note: Difference between Amended and Supplemental
Amended it depends
o Matter of right 15 days

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o Judicial Discretion 10 days
Supplemental always 10 days
Q: Can you file a counterclaim or cross-claim in the pendency of the case?
YES. If there are omitted counterclaim or cross-claim

H. Omitted counterclaim or cross-claim:
Ask permission from the court to present these omitted claims.

Q: Can you file extension? YES.
I. Extension of time to plead:
Discretionary upon the court but it is already a practice to
grant it right away
15-day extension only

Rule 12
BILL OF PARTICULAR
A. Definition
Bill of Particular a more definite statement of any matter which is not
averred with sufficient definiteness or particularity in a pleading.
A motion filed by a party who is required to answer a pleading
(responding party).
Resorted to by the party if the pleading filed is vague or not
very clear
EX: You filed a complaint which must be answered within 15 days. How
could I make a good answer to your complaint when the allegations are not
very clear? Instead of answering, I will file a motion to particularize your
complaint. It is like asking the court to tell the plaintiff to make clear the
complaint so that you can answer it intelligently.

The purpose of the Bill of Particular is to let the plaintiff clarify the material
averments in the complaint constituting the ultimate facts to be
established in the complaint.

NOTE: You cannot use Bill of Particulars to make the plaintiff divulge
evidentiary matters. Remember the Sec 2 in Rule 8 that the plaintiff, in
filing a complaint, must present it in methodical and logical way. You will
only present ultimate facts, do not divulge evidentiary matters.

When the bill of particular is filed in court, the clerk of court must bring the
matter to the attention of the judge. It is discretionary upon the judge to
deny or grant the motion.
If the judge thinks that it only delays the case, he may deny the
motion.
If GRANTED compliance therewith must be within 10 DAYS
FROM THE ORDER, UNLESS DIFFERENT PERIOD IS FIXED BY THE
COURT

How is it presented? The plaintiff must present it in separate pleading or
do it by way of amended complaint.

EX: I filed a case against you, instead of answering you filed motion for bill
of particulars because there are many allegations in the complaint that is
vague. You asked the court to make me particularize the allegations. The
Court granted the motion. The moment I receive the order of the court, I
have 10 days to comply.
What happens if I dont comply? The court would strike out the
allegations in the pleading which are not particularized.

How? First, If you ask me to particularize paragraph 1, 5, 10 in my pleading,
mao ra sd na ako e particularize. Paragraph 1 mao ni ako pasabot.
Paragraph 5 this is what I mean etc.
Second way, I will present a new complaint which now
particularize the portion you asked to be particularized.

*So it is either AMENDED PLEADING or SEPARATE PLEADING.

The Bill of Particular STOPS THE RUNNING OF THE PERIOD TO FILE AN
ANSWER
I asked for Bill of Particulars. If it is granted by the court, I have
the balance of the period to file an answer
o BUT IN NO CASE IT SHALL BE LESS THAN 5 DAYS.

NOTE: You must connect this to Rule 22 Effect of the Interruption of the
Period
The date that the pleading that interrupts the period was filed
shall be EXCLUDED in the counting of the balance of the period. And the
day that you received the order of the court granting the bill of
particulars shall also be EXCLUDED.

EX: I received the complaint TODAY, I have 15 days to file an answer. On 9
th

day, I filed bill of particulars granted by the court. You have now
submitted you compliance. How many days left for me to file an answer?
The day you received the order SHALL BE EXCLUDED 8 days
pa ang nagamit the 9
th
day shall be excluded in the counting.
NOW I STILL HAVE 7 DAYS TO FILE AN ANSWER.

EX: What if I file the Bill of Particulars on the 13
th
day I only have 2 days
left? NO, YOU HAVE 5 DAYS TO FILE THE ANSWER
The law says IN NO CASE IT SHALL BE LESS THAN 5 DAYS

Rule 13
FILING AND SERVICE OF PLEADINGS, JUDGMENT AND OTHER PAPERS

Filing delivering the pleading in court
Service act of furnishing pleading to the other party

How to file pleading:
Personally delivering the pleading (5 copies) to the clerk of
court indicating therein the original copy (1 of the 5 copies)
By Mailing
EX: You want to file case in Davao, you dont have to go to Davao.

2 MODES OF MAILING:
Registered Mail more preferred way of mailing
o Because the day that you mail it is the day of filing
Ordinary Mail the date of mail is not the date of filing, it is the
date of actual receipt of the court

REGISTERY CARD: In the Registry Card, you write the name of the
addressee. Then you tell the post office that you will mail it in a registered
mail. You will be issued a registry receipt. When that mail is delivered to
the addressee in Davao, that mailman will give the envelope and detach
the registry card attached to it. Papermahon dayon ang addressee as a sign
that he received it. The mailman will return that registry receipt to Cebu,
and that will be the best proof that the addressee has already received it.

*Service of Pleading consist furnishing a copy of pleading filed in court
SUBSEQUENT TO THE COMPLAINT
In a complaint, you need not serve a copy to the other party. If
you file a complaint, you file it in court and it is the court who will furnish
a copy to the defendant through the issuance of the summons attached
with the complaint requiring defendant to answer.

It is not the duty of the plaintiff to furnish copy of the complaint to the
defendant. It is the duty of the court.
In so far as service of the complaint governed by Rule 14

BUT ALL PLEADINGS SUBSEQUENT TO THE COMPLAINT (answer,
counterclaim, crossclaim, third party complaint, reply, motions, etc) you
must furnish copy of that to the other party

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Which one comes first? Filing of the pleading in court or service of
pleading to the other party?
Service of Pleading to the other party MUST COME FIRST
before filing of pleading in court
The clerk of court will not allow that you will file your pleading
in court if there is no proof that you have furnished copy to the
other party.


How to serve pleading to the other party:
1. Personally preferred mode of service
2. Mailing through registered mail you must serve it with
explanation why you did not serve it personally
o Why? Because other lawyers before, bisag naa ra sa
atbang ang servan ug pleading, ila jud ipa mail nlang
kay dugay man maabot. By the time he receives the
pleading, humana ang motion nga gipangayo sa
korte.
o It must be because of impractical reason Naa ka sa
Cebu then ang imo servan kay naa Manila.
o Only when there is no available mailing office in the
place.
*The court is strict with this rule because if you will not put an explanation
why you did not serve it personally YOUR PLEADING SHALL NOT BE
ACCEPTED.
3. Substituted Service of Pleadings consist of delivering copy
to the clerk of court only allowed when you cannot serve
copy of the pleading to the lawyer or to his client.
o Service of the pleading should be to the lawyer and
not to the party UNLESS THE COURT PROVIDES
OTHERWISE
o It should be to the lawyer TO AVOID EXCUSES
give it to someone who is knowledgeable of the law
*The party is bound to the actions of his lawyer.
BUT there is an exceptions:
If the negligence of the lawyer is gross

*Substituted Service of Pleadings vs Substituted Service of Summons
Substituted Service of Summons consist of delivering summons to your
secretary if you are not around; or it will be served in your house to any
person of suitable age and discretion

Personal Service maybe made:
Delivering personally to the party or his counsel
Leaving it in the office of the lawyer
If the lawyer is not around any person in charge (secretary)
If the lawyer is not found in his office serve to their residence,
to a person of service
If the lawyer is not found in his residence given to any person
of suitable age or discretion residing therein
o You cannot serve it to his son who is 7yrs old
o Maid? Yes, they are allowed so long as they are of
suitable age and discretion they already know what
they are receiving.

Substituted Service of Pleading if neither the lawyer and client is not
found. Then service must give to the clerk of court make an explanation
why.

Decisions of the Court
Any order or judgment of the court must be served on both parties 1.
personally or 2. by registered mail.
It CANNOT be done through substituted service.
HOWEVER, It can also be done through 3. publication. ONLY
IF THE SUMMONS IS ALSO DONE BY PUBLICATION.

Remember: Before the court will accept your pleading, there must be a
proof of service of pleading to the other party.

How will you prove?
If served with personal service by the signature of the other
party who receives it.
o Best Evidence: Copy of the pleading that was signed.
EX: So when I prepare pleading, I will produce 5 copies to be sent by my
messenger. 1 Copy for the Lawyer of the Defendant the messenger give
the copy to the lawyer and let him/ his secretary sign the original copy or if
possible the 5 copies.
In the last part of the copy, theres something put there
received copy.. (signature). Then you file it in court to be examined if
there is proof of the signature.

If by Mailing best evidence is the Register Receipt attached to
the Pleading (BUT CAN EASILY BE CIRCUMVENTED)
o In CA and SC they require Affidavit of Service
SIGNED BY YOUR OFFICE MESSANGER.

I dont know why it is included in here, but lets just discuss this
NOTICE OF LIS PENDENS a notice annotated in the back of the title of a
real property in order to inform the whole world that the land is subject
matter of a pending case
It is annotated at the back of the real property ONLY IF THE
REAL PROPERTY IN A CASE INVOVLES A CLAIM OF OWNERSHIP
TO BOTH PARTIES.

Normally, it is asked by the plaintiff.
EX: I file a case against you to recover the land with a title in your name. In
order to protect my claim, to prevent you from selling the property to
another person ako pa tatakan ug notice of lis pendens.
That the land is subject of a litigation. And anyone who buys the
land can never claim to be a buyer in good faith.

EX: In a Case, In order to recover his Contractors Lien, A wants to annotate
lis pendens to the building. Remember that lis pendens only applies to
claims of ownership. He may have a contractors lien but it does not
amount to claim of ownership of the building.

December 14, 2013
Rule 14
Summons
Summons order by the court to the defendant, informing him that there
is a case filed against him, to answer the complaint; otherwise he be
declared in default

A. Issuance and Contents:
Contents:
Name of the Court (Republic of the Philippines, RTC, Cebu City
Branch so and so)
Name of the Parties (Plaintiff and Defendant) Left Side
Case Number Right Side
*It contains the caption of the pleading.

B. By whom served
1. Sheriff
2. Deputy Sheriff
3. Other proper court officer
4. Any suitable person authorized by the court (policeman, military
CANNOT serve summons UNLESS, they have authority of the court)

*Service of summons is MINISTERIAL ACT. Thus, service of summons may
be made anytime - at night, during the day, on Sunday or even on holidays
because of its ministerial character (Laus vs CA)


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Where? It can be served anywhere in the Philippines.
EX: The RTC in Cebu can send its Sheriff to go to Ilocos to serve the
summons. But now, because it is expensive, RTC in Cebu could
communicate with RTC in Ilocos. Then the RTC in Ilocos could assign the
Sheriff that will serve the summons.
Magpadala ra na slag postal number para sa bayad.

*After service of summons REPORT - Return of Service of Summons
(within 5 days)
Stating therein the how it was served, where it is served, the
specified date, time, person whom the summons is given.

When the defendant can no longer be found still make a report that the
summons was not served THEN RETURN THE SUMMONS TO THE COURT
= considered A DEAD SUMMONS.

*Alias summons, when issued
Now when the defendant will comeback and his address is
known, the plaintiff will then motion the court to issue another summons
called ALIAS SUMMONS.

Alias Summons is the 2
nd
summons issued by the court in relation to the
1
st
summons that was returned unserved.

C. Modes of Service:
1. Personal Service (Sec. 6) it is effected by handing a copy thereof to the
defendant in person and if he refuses to receive and sign for it, by
tendering it to him. It can be served on the defendant anywhere he is
found.
It can be served at the residence or at the office of the
defendant at anytime of the day.

Must it be served in his residence and office ONLY? NO, It can be served
anywhere.
EX: inig adto sa sheriff sa ilaha, wala sya nakit.an. Ni adto sa opisina, wala
gihapon. Paglakaw nya nakit.an nya naa ra d.i sa buwangan, aw adto sa
buwangan e.serve.

What if the defendant will refuse to accept? The sheriff cannot be held
hostage by the defendants refusal to accept. The sheriff will tender the
summons to him, leave it and return to the court.
Che! Bahala ka sa buhay mo! Heres the summons, m.adto na
ko para maghimu ug report.
The report must also specify that the defendant refused to
accept and you just left it with him.

2. Substituted Service (Sec. 7) only when personal service is of no avail -
(a) by leaving copies of the summons at the defendants residence with
some person of suitable age and discretion then residing therein, or (b) by
leaving the copies at defendants office or regular place of business with
some competent person in charge thereof.

In the RESIDENCE ha, so if you leave the summons sa silingan
dili na pwede. Of right age and discretion, so pwede ra ang maid of right
age tagaan, pero dili pwede ang 10 years old nga anak.

*Personal Service is the preferred service of summons. The Substituted
Service can be resorted to when there is a proof that the sheriff made
SEVERAL attempts to serve it personally but it failed.
EX: Ni adto ang sheriff sa residence, wla ang defendant pero naa
ang misis. Gihatag dayon nya sa misis kay substituted gd. NOT ALLOWED.
First attempt pa gali, balik lang sa sunod. Katulo, kaupat, wla pa gihapon
this is the time you can resort to substituted summons.
It is important that the sheriff will also indicate in his report that
he tried several attempts to serve the summons but failed.

3. Service of Summons by Publication (Sec. 14, 15 & 16) can only be
resorted to when the defendant can no longer be located and the
substituted summons cannot be had.
- way residence, way asawa, way anak, wa tanan.

When allowed:
1. in any action where the defendant is designated as an unknown owner,
or the like, or whenever his whereabouts are unknown and cannot be
ascertained by diligent inquiry (sec 14)

2. When the defendant does not reside and is not found in the
Philippines, and the action affects the personal status of the plaintiff or
relates to, or the subject of which is, property within the Philippines, in
which the defendant has or claims a lien or interest, or the property of the
defendant has been attached within the Philippines. (THE EXTRA
TERRITORYAL SERVICE OF SUMMONS because defendant is already
outside of the Philippines)
- Here the defendant is residing in the foreign country

3. Any action commenced against a defendant who ordinarily resides
within the Philippines, but who is temporarily out of it, service may, by
leave of court, be also effected by publication (Sec. 16)
- Here the defendant is a resident but temporarily out of the
Philippines

(Montalban vs Maximo)
Service of summons by publication may be resorted to when the
defendant is sued as an unknown owner of a thing OR he is known but his
whereabouts is unknown and cannot be ascertained by diligent inquiry,
although he is just within the Philippines. Here, leave of court is required
for service of summons by publication.

MAGIC MOVES READ EVERYTHING FIRST
Before:
If the action is an action in personam, as in the case of
collection of sum of money, summons by publication is not sufficient as the
law requires personal service on the defendant (Pantalean vs Asuncion)

Service of summons by publication applies on to action en rem
or quasi en rem. However, there is a remedy by converting the action in
personam to action in rem or quasi in rem and this is by attaching the
property of defendant in the Philippines. By attaching the property under
Rule 57, the court has now acquired a lien

PANTALEAN AND ASUNCION ARE NOW ABOLISHED FORGET ABOUT IT.

PRESENT RULE:
HOWEVER, if the defendant court could not be personally served with
summons despite diligent efforts to locate his whereabouts, summons by
publication may be resorted to even if it is an action in personam. The in
rem/ in personam distinction was significant under the OLD RULE because
it was silent as to the kind of action to which the rule was applicable.
Because of this silence, the court limited the application of the old rule to
in rem action only. This has been changed now. The present rule
expressly states that it applies IN ANY ACTION WHERE THE DEFENDANT IS
DESIGNATED AS AN UNKNOWN OWNER ETC. (SEC 14). Thus, it now
applies to any action whether in personam, in rem or quasi-in-rem.
(Pedro Santos Jr. vs PNOC) - IMPORTANT

Instances where Extra-Territorial service of summons under Sec 15 is
allowed
1. Action affects the personal status of the plaintiff
2. When the subject matter involves a property in the Philippines which the
defendant has a claim or lien; is attached
3. When the relief demanded consists in excluding the defendant from any
interest therein
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4 When defendants property is attached

Modes of Extra-Territorial Service of Summons
1. Personal Service resorted to if the resident in foreign country is
KNOWN
EX: Kabaw ka nga naa sa Los Angeles with the street and house number
aw pwede kaau epadala ang sheriff ngadto. Kung dato kaau ang plaintiff aw
sya plite sa sheriff ngadto!
2. By publication more practical way of service.
3. In any other manner the court may deem sufficient (Carriaga vs
Malaya)
In this case, they had it by mailing. What happened in this case
is that the child filed a case against his father for recognition as legitimate
child demanding for support. The father is already residing in the US.
Wa lage sya kwarta, wa pd sya ika bayad sa filing fee so the
court allowed him to file a case a an indigent litigant para ma exempted.
Now the problem is the service of summons, luckily he knows the address
through his mother. The court resorted to mailing the summons to the said
address. Nadawat man jd sa defendant ang summons and he hired a
lawyer in the Philippines QUESTIONING THE SERVICE OF SUMMONS. His
contention is that it is not allowed by the rules of court kay gi mail ra man.
SC held that it falls under the exception IN ANY OTHER
MANNER.

*But Extra-Territorial Service is NORMALLY DONE IN PUBLICATION.
HOWEVER, the summons must FIRST BE SENT (normally it is be
mailed) TO HIS LAST KNOWN ADDRESS.

Remember: Mailing is not a mode of service of summons but it is a
requirement if the service is done through publication AS A COMPLIANCE
ONLY. IMPORTANT

D. How service of summons is made to some defendants:
1. Service upon entity without juridical personality (Sec 8)
If a XYX Corporation is not registered in Securities and Exchange
Commission as a corporation, partnership or association. Who
will you sue? You sue the name jd XYZ and the summons will
be sent to the management. Maybe XYZ is an informal
partnership, I do not know, as long as it reached to them.
2. Service upon prisoners (Sec 9)
Service shall be delivered through the warden, he will act as the
sheriff (to serve and to report).
3. Service upon minors and incompetents (Sec 10)
Served through his guardian, parents and to the minor himself.
4. Service on domestic private juridical entity (Sec 11) meaning duly
registered
In the new rules, it is specified kung kinsa mga taw nga dapat
makadawat sa summons
o President, Managing Partner, General Manager,
Corporate Secretary, Corporate Treasurer, In-house
Council - MEMORIZE
So even if it is served to the Assistant Manager, Branch Manager
anyone under the Manager invalid service of summons
o It is only in the OLD RULES THAT THEY ARE
ALLOWED because of the word AGENT, BUT
UNDER THE NEW RULES IT IS ONLY EXCLUSIVE TO
THOSE MENTIONED ABOVE IMPORTANT, for
differentiation lang gd
5. Service upon foreign private juridical entity (Sec 12)
Serve it to the agent if residing in the Philippines
Government agency or any officials authorized by law
6. Service upon public corporations (Sec 13)
Serve to the Solicitor General lawyer of the government
But if it is a political subdivision (Province of Cebu, City of Cebu)
to Governor/Provincial Attorney/Mayor

A foreign corporation not doing business here in the Philippines cannot be
sued here. Doing business does not refer to just one isolated transaction
but of a series of transaction. If a foreign corporation is doing business
here, it can be sued through its agent or through a government official
designated by law to receive it.

If domestic corporation address is unknown, it is wrong to
immediately service summons by publication. The Sheriff must first effort
to locate its officer (Baltazar vs CA)

E. Proof of Service:
The proof of service of summons shall be made in writing by the
server and shall set forth the manner, place and date of service; shall
specify the paper served and the name of the person who received it; and
shall be sworn to when made by a person other than a sheriff or his deputy
(Sec. 18)

If the service has been made by publication, the best proof of
service is the affidavit of the publisher. The editor in chief of the publisher
(SunStar or Daily perhaps) will execute an affidavit that it is already
published in the newspaper. 3 Copies you must indicate the different
dates you can cut out the portion that it was published then present it
in court.

Peraldo Case OLD RULE
If you file motion to dismiss on the ground of improper service
of summons, the court has not acquired jurisdiction over the person of the
defendant.


In another Case OLD RULE
If you involve other grounds of motion to dismiss YOU ARE
DEEMED TO HAVE WAIVED YOUR RIGHT TO QUESTION THE JURISDICTION
OF THE COURT.

Lanabal Case NEW RULE - APPLICABLE
If you file motion to dismiss on the ground of lack of jurisdiction
over the person because of improper service of summons and you included
other grounds of dismissal, YOU SHOULD NOT BE CONSIDERED TO HAVE
WAIVED YOUR RIGHT TO QUESTION THE JURISDICTION.
The defendants voluntary appearance in the action shall be
equivalent to service of summons. The General Rule is that if you file
pleading in court that is considered VOLUNTARILY SUBMITTING
YOURSELF TO THE JURISDICITON OF THE COURT.
EXCEPTION: HOWEVER, THE INCLUSION OF OTHER GROUND
SHALL NOT BE DEEMED A VOLUNTARY SUBMISSION TO THE
JURISDICTION OF THE COURT. THEREFORE, IT CANNOT BE INTERPRETED
AS SUBMITTING YOURSELF/ WAIVING THE DEFENSE. YOU ARE PRECISELY
QUESTIONING THE JURISDICTION AND YOU SHOULD NOT BE PRECLUDED
FROM INCLUDING OTHER GROUNDS.
Especially now, that we already have the Omnibus Motion Rule.
That if you file motion to dismiss, you should include all defenses available
otherwise it is deemed waived.

G. Voluntary and Special Appearance:
The defendants voluntary appearance in the action shall be
equivalent to service of summons. The inclusion in a motion to dismiss of
other grounds aside from lack of jurisdiction of the person over the
defendant shall not be deemed a voluntary appearance (Sec. 20)

January 7, 2014
Rule 15
Motions in General
A. Motion Defined:
An application of relief other than by a pleading.


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other than a pleading because pleading contains the causes of action,
the defenses of a party in the case.

Sec. 6 defines what is a pleading and there are only 3 different kinds of
pleading (complaint, third party complaint, reply). Because of these
reasons, motion is not considered as a pleading, but in the strict sense of
the word it is actually a pleading. To plead is to ask something from the
court. To ask a relief from the court.

B. Requisites for a valid motion:
It must be in writing except those you can make in the course
of the trial of the case.
But not all motions need to be in writing. There are motions that are
presented during trial.
EX1: The plaintiff is required by the court to present evidence and the
lawyer of the plaintiff presented A and 3 others as witnesses. The
defendant lawyer may motion to the court that the 3 others must be
excluded from the court while A is talking in the witness stand. They may
copy what he will say.

EX2: The hearing is pass 12oclock PM gutom na kaau you move for the
continuance of the hearing. it need not be in writing.

Contents the specific reliefs you are asking for and the
sufficient grounds relied upon by the relief
o There must be a supporting affidavit of merit. E.g.
motion for new trial, motion to lift the order of the
court

It must be set for hearing on a particular date only be set for
hearing if it is a litigable motion. (LALISUNON PA KAAU the
other party would surely object for your motion) -
MANDATORY
o But there are motions that does not need for
hearing e.g. Emergency/ Accident ang nman
e.hearing pa kung naa na medical certificate nga
kamatyunon na imo client?
*Set the motion for hearing not beyond 10 days from the time
you file the motion. Normally, motions are heard on a Friday
Afternoon.
Although you set the date of the hearing yourself, it
is not necessary that it will be the actual date. It is discretionary
upon the court whether to grant or deny that request for
hearing date. Nevertheless, you must put that date in the
motion for compliance.

Notice of hearing must be addressed to the other party
NOT to the clerk of court. MANDATORY

Proof of service the receipt by registered mail or personal
MANDATORY requirements for the validity of the motion.

MANDATORY they must be present, otherwise the motion is a proforma
motion.
PROFORMA MOTION a motion that failed to comply with the valid
requisite of the motion. It is considered as mere scrap of paper the filing
of such will NOT STOP THE RUNNING OF THE PRESCRIPTIVE PERIOD TO
APPEAL.
EX: The court rendered a decision adverse to you. Instead of
appealing, you filed motion for reconsideration. Unfortunately, your
motion is a proforma motion because you did not set it for hearing or it did
not contain a notice of hearing or there is not proof of service of motion to
the other party. EFFECT: The running of the prescription to appeal is not
tolled.

MARU2 SA MGA ABOGADO: After receiving the motion, and you notice
that it is a proforma motion ayaw usa ug tingog. Let the 15-day period to
pass, after 15 days you tell that the motion is a proforma motion. The other
party dali2 dayun himu ug appeal pero wala na. Prescribe na. They have
already lost the case simply because of technicalities.

C. Motion Day:
Is on a Friday afternoon, or if Friday is a non working day, in the
afternoon of the next working day.

- BUT MUST NOT BE MORE THAN 10 DAYS AFTER THE SERVICE OF MOTION

D. Omnibus Motion Rule when you file motion in the court, put all
available grounds.

E. Motion for Leave:
A motion for leave to file a pleading or motion shall be
ACCOMPANIED by the pleading or motion sought to be admitted (Sec. 9).
If not accompanied by the pleading, the court will not act on your motion.
It I considered as a mere scrap of paper proforma motion.

F. Form:
The rules applicable to pleadings shall apply to written motion
as far as caption, designation, signature, and other matters of form (Sec.
10).

Rule 16
MOTION TO DISMISS

REMEMBER: Motions if litigable, it must be set for hearing
Without setting of hearing proforma motion

A Motion to Dismiss LITIGABLE MOTION MUST BE SET FOR A HEARING

A. When to file:
Filed normally by the defendant within the period to answer
(15-day period) he has the option to file an answer right away or file a
motion to dismiss

B. Grounds for Motion to Dismiss 10 GROUNDS:
1. That the court has no jurisdiction over the person of the defendant
*When does the court acquire jurisdiction over the person of the
defendant? The moment the defendant receives the summons and the
copy of the complaint.
GR: Service of Summons
Exceptions: even if he is not served summons, he voluntarily go
to court:
o Waiver
o Voluntary appearance
o Filing a pleading e.g. Extension to file answer
o Entering into a compromise agreement
EX: You knew that the plaintiff filed a
complaint in the court but you did not
received the summons yet. So you went
to the plaintiff and enter into a
compromise agreement and submit it to
the court for approval. Then it is
considered a waiver or voluntary
appearance in the court.
o Issuance of an alias summons instead of dismissing
the case (Linger and Fisher vs IAC)

Linger and Fisher
If dismissal is based on this ground, then let the court serve an
alias summons and let the sheriff serve it properly. It is the mistake of the
Civil Procedures SY 2013-2014
JKB Rm 405

7
sheriff and not of the plaintiff. The court should not dismiss the complaint
right away.

*This is the weakest ground it can easily be corrected - if he is not yet
served of summons, then serve the summons again propery. Mao ra man
d.i na ang rason, let the sheriff serve it right now.
If he will say that the summons was improperly served because
it was given to his 10year old son, aw serve it this time to him properly.

Abandoned:
If the defendant questions the jurisdiction of the court on the
ground of invalid service of summons, he may do so by way of special
appearance. However, if the same motion also raised other grounds of a
motion to dismiss, such special appearance will be of no avail and the party
is deemed to have submitted himself to the jurisdiction of the court. (De
Midgely vs Ferandos)
This seems like a shallow ruling of the court, that is why it is
abandoned.

Applicable:
La Naval Case
If you filed motion to dismiss based on ground No. 1, you should
do it by way of special appearance. Meaning, you are not waiving your
right to question the jurisdiction.
THAT YOU ARE JUST FILE A MOTION FOR A SPECIAL
APPEARANCE PURPOSELY TO QUESTION THE JURISDICTION OF THE
COURT BECAUSE OF IMPROPER SERVICE OF SUMMONS.
Therefore, you are not precluded from including other grounds
especially that there is this Omnibus Motion Rule.

2. That the court has no jurisdiction over the subject matter
This can be resolved by the court simply by looking at the
allegations in the complaint whether it states that the court has jurisdiction
of the subject matter. The court will not entertain any other subject matter
except those mentioned only in the complaint.
tan.awn nato ning complaint be if tinuod ba nga wa just
jurisdiction ang court over the subject matter.

*This ground is a ground that is not considered waived even if you did not
raised it in the motion to dismiss. If you did not include it in the motion to
dismiss, you can include it in the ANSWER BY WAY OF SPECIAL DEFENSE.
You can even raise this ground ANYTIME, even if the case has
already been decided by the court. You can even raise it for the first time
only appeal. EXCEPT when there is UNREASONABLE DELAY in raising the
issue by reason of ESTOPPEL BY LACHES.

As a general rule, the ground of lack of jurisdiction over the
subject matter may be raised anytime, even for the first time on appeal.
However, if there is unreasonable delay in raising this ground, you may no
longer be allowed to invoke it under the equitable doctrine of estoppel by
laches (Tijam vs Sibonghanoy)

But the Sibonghanoy ruling is not intended to be the rule. It is
only to be applied in exceptional cases. (Seafdec-Agriculture Dept. vs
NLRC) and the case of (De Leon vs CA)
- ONLY WHEN THERE IS UNREASONABLE DELAY.

3. Improper venue filed in a wrong venue; it may be in proper court but it
is in improper venue

4. Lack of legal capacity to sue on the part of the plaintiff -
2 Types of Lack of legal Capacity to Sue:
Plaintiff does not possess the necessary qualification to appear
at the trial such as a minor or insane.
Plaintiff does not have the character or representation which he
claims such as an agent or guardian without the required
authority from the real party in interest.

5. Litis pendensia that another action pending between the same
parties for the same cause of action
This presupposes that there is another case that is pending,
these 2 cases are also identical.

Elements of Litis Pendentia:
Identity of parties between the two actions
Identity of rights asserted and relief prayed for
The relief must be founded on the same facts
The identity in these particulars should be such that any
judgment which may be rendered on the other action will,
regardless of which party is successful, amount to res judicata in
the action under consideration. This simply means that
regardless of who wins in the first case, the effect is that res
judicata will result in the second case.

When there is Litis Pendentia, it does not necessarily follow that the
second case filed must be dismissed. (Teodoro va Mirasol)

6. The cause of action is barred by prior judgment or by statute of
limitation
Has 2 Grounds Referred to:
Res Judicata that there is another case with the same facts,
issues and relief - that was filed before and it has already been
decided.
Prescription barred by statue of limitation lapse of time.




Litis Pendentia vs Res Judicata
They are the same in the sense that they are both the same
cases pending in different courts. The difference is that in Litis Pendentia,
the case has not been decided yet, it is just pending. Whereas in Res
Judicata, the other case has already been decided.

7. Failure to state a Cause of Action to determine if there is cause of
action, the court will only rely on what is alleged in the complaint. no
need for hearing.

8. Plaintiffs claim has already been paid, waived, abandoned or
otherwise extinguished.
- this involves collection of sum of money pero nabayran na gd, unsa pa
man kailangan himuon?

9. That the complaint cannot be proven in court statute of fraud
Statute of Fraud UNENFORCIABLE - that there are certain contract that
must be in writing in order to be enforced or proved in court.
We cannot all the time rely on the memories of men.

Example of Transactions that must be in Writing:
Actions that cannot be done within 1 year
If it involves Property or Money that the value is more than
P500
A promise in consideration of Marriage other than the Promise
to Marry
Contract of Lease more than 1 year.

EX: You filed case against me involving collection of sum of money 1M. I
denied. So how will you prove that I borrowed from you nga wa man koy
gipermahan. You cannot prove that using parol evidence unless there is
partial execution/ performance.

Civil Procedures SY 2013 -2014
JKB Rm 405 8

10. Condition precedent for the filing of claim has not be complied with
Eg. Exhaustion of Administrative Remedies, Barangay Conciliation, Exerted
Earnest Effort to Settle the Matter Amicably must be indicated in the
complaint.

C. Hearing of the Motion to Dismiss:
The court required the movant to present evidence in support
of his motion to dismiss. The movant is allowed to present evidence to
substantiate his claim.

However, he is not allowed to present evidence if the ground he relied on
are:
Lack of jurisdiction over the subject matter; and
Complaint states no cause of action

Movant need not present evidence because they can be resolved by the
court based solely on the allegations of the complaint. Basahon ra na sa
court. The court would also allow the other party to answer, so no need to
present.

After they filed the answer, the court can:
Deny
Grant
Require the plaintiff to amend the complaint
Court may defer

If it is granted Dismissing the Complaint then it is the end of the case of
the plaintiff.
Remedy of Plaintiff: File an appeal to higher court under Rule 65.

If Denied Interlocutory Order cannot be appealed.
Remedy of the Defendant Petitioner for Certiorari / Prohibition if you
think that the court has no jurisdiction to proceed with the trial of the case.

- If the defendant filed motion to dismiss - the plaintiff can still amend the
complaint even if there is already a motion to dismiss filed. Because the
motion to dismiss is not a responsive pleading (answer)
Remember: you can amend your complaint as a matter of right
if there is yet no responsive pleading filed by the defendant. -
IMPORTANT

- The court CANNOT defer the resolution of the motion to dismiss for the
reason that the ground relied upon is not indubitable (DOUBTFUL).
- New Rules provides that the court MUST resolve the motion to
dismiss kung walay klaru ang motion, DENY DAYUN - IMPORTANT

- In every case, the resolution shall state clearly and distinctly the reason
therefore.

E. When to plead if motion is denied:
If the motion to dismiss is denied, defendant has to file his
answer within the balance of the period prescribed by Rule 11
to which he was entitled at the time of serving his motion, but
not less than five (5) days in any event (Sec. 4)
An order denying a motion to dismiss is interlocutory order

EX: You receive the summons on March 1.
- Until when can you file answer? March 16.
BUT on MARCH 8, you file Motion to Dismiss and set forth in hearing
resolved on May 5 - DENIED.
- How many days have you used? 6 days only (March 1 and March 8 shall
not be included in counting)
- How many days left for you to file answer? 9 days (15 6 = 9) - So your
deadline is on May 24

BUT WHAT IF YOU ONLY HAVE 2 DAYS LEFT? HOW MANY DAYS LEFT FOR
YOU TO FILE? 5 DAYS No case it shall exceed 5 days.

F. Effect of order of dismissal:
- the plaintiff may APPEAL the dismissal or RE-FILE the case if
the ground for dismissal are par. 1, 2, 3, 4, 5, 7 and 10. But if the dismissal
is ground on par. 6, 8 and 9 you cannot anymore re-file.

EXCEPTIONS:
That the action is barred by prior judgment or by statute of
limitation. (Par 6) Res Judicata or Prescription
That the claim or demand has already been paid, waived,
abandoned or otherwise extinguished. (Par 8)
That the claim on which the action is founded is unenforceable
under the provisions of the Statute of Frauds. (Par 9)

Ground 1: Improper Service of Summons, does not acquire jurisdiction of
the person of the defendant.
You can re-file, see to it that the service is proper

Ground 2: Lack of Jurisdiction of Subject matter
You can re-file, see to it that you have sufficient allegations in
your complaint that would support the jurisdiction of the
subject matter

Ground 3: Filed in the wrong venue
Re-file it this time in the proper venue.

Ground 4: Lack of legal capacity
Re-file, this time get the proper authority.

Ground 5: Litis Pendencia
If the first case is dismissed.

Ground 6: Res Judicata & Prescription
CANNOT RE-FILE

Ground 7: Lack of Cause of Action
Amend the complaint

Ground 8: Case is waived, extinguished, abandoned
CANNOT RE-FILE

Ground 9: Statute of Fraude
CANNOT BE RE-FILE

Ground 10: Conditions Precedent
You can re-file, this time comply with the conditions

G. Pleading grounds as affirmative relief:
*You may file the motion to dismiss, or you may file your answer right
away and include that as special affirmative defenses.

*Now if you file motion to dismiss, it can easily be corrected by the other
party. HOWEVER, you include the grounds of dismissal in you answer
plaintiff cannot easily amend the complaint right away.

What are the advantages if you file answer incorporate the ground of
motion to dismiss? Plaintiff cannot easily amend his complaint and the
defenses are just the same because when you file your answer
incorporating the grounds as part of a special affirmative defense, you can
always ask the court for a preliminary hearing for your special affirmative
defense.
If you can prove the special affirmative defenses in court then
there is no need to go through the whole trial. - IMPORTANT

Civil Procedures SY 2013-2014
JKB Rm 405

9
*Preliminary Hearing is different from Pre-Trial.
Preliminary hearing is actually a hearing of your motion to
dismiss that is incorporated in your answer that you wanted to be heard
first.

Rule 17
DISMISSAL OF ACTIONS
Rule 16 vs Rule 17
Rule 16 dismissal is at the instance of the defendant
Here, the dismissal is at the instance of the PLAINTIFF. Ikaw ni kiha, ikaw
pd nagpa dismiss.

How?
With leave of court
Without leave of court

A. Dismissal upon notice by plaintiff:
when a matter of right no need to file motion for leave of
court to withdraw his complaint
o when there is yet NO answer filed by the defendant
o when there is yet NO motion for summary
judgment
*Now, even if the defendant as already filed an answer in court but it was
not yet received by the plaintiff he can still file motion to dismiss as a
matter of right. SO IT IS ACTUALLY THE RECEIPT OF THE ANSWER THAT
MATTERS.
by NOTICE of dismissal the word used is NOTICE, so it is sent
to the court ONLY
o The court will just grant it cannot deny IT IS A
MATTER OF RIGHT MANA NMU that is why it is
called NOTICE nagpahibaw ra ka, hoi, e.dismiss
na
Dismissal is without prejudice (it can be re-filed) - meaning,
the plaintiff can always re-file the case.
o EXCEPT when the order of dismissal provides
otherwise OR under the Two Dismissal Rule.
TWO DISMISSAL RULE on the 2
nd
WITHDRAWAL, you must ask the court
that it can be re-filed must have the permission of the court
EX: I filed a case against you, before you can answer I filed motion to
withdraw the complaint. Later on, I decided to re-file the same case again.
Q: Can I withdraw it again? YES, BUT IT MUST BE WITH LEAVE OF COURT.
Its no longer a matter of right.

B. Dismissal upon MOTION of the plaintiff word used is MOTION no
longer a matter of right there is already an answer filed an answer
Leave of court is required
BUT: Dismissal does not include counterclaim
o The defendant may have a counterclaim and the
court may grant that claim at the option of the
defendant
So if the plaintiff filed motion to dismiss his case, the defendant may have
some counterclaims IT IS THE OPTION OF THE DEFENDANT TO HEAR THE
CASE IN THE SAME COURT OR HE WILL FILE ANOTHER CASE TREAT IT AS
SEPARATE CASE.
Dismissal is without prejudice unless otherwise specified.
o He can still re-file the case, unless in the dismissal
the court states that it is with prejudice.

C. Dismissal DUE TO THE FAULT of the plaintiff ONLY AT THE INSTANCE
OF THE COURT; motu proprio:
3 Grounds for dismissal due to the fault of plaintiff
When plaintiff fails to appear on the date of the presentation
of his evidence in chief;
When plaintiff fails to prosecute his case for unreasonable
length of time; - most cases are dismissed because of this
o it must be the plaintiff / his counsel to file motion for
hearing of pre-trial (new rules)
o maldito man kaau ang uban judge, di pd sla mu
follow up the lawyer did not file for motion to hear
the pre-trial AW DISMISS DAYUN, TUG MAN SA
PANSITAN!
When plaintiff fails to comply with the Rules of Court or any
order of the court for no justifiable reason or cause.

January 11, 2014
Rule 18
PRE-TRIAL
Pre-Trial that stage in the litigation of action where the parties are called
by the court in a conference to find avenue of amicable settlement of the
case
A. When conducted:
Shall be conducted after all the issues are joined.

B. Nature and Purpose:
The possibility of an amicable settlement or of a submission to
alternative modes of dispute resolution
The simplification of the issues
The necessity or desirability of amendments to the pleadings;
The possibility of obtaining stipulations or admission of facts
and of documents to avoid unnecessary proof;
o Both parties shall agree on the facts, if they agree
there is no need to present evidence to establish
such fact.
The limitations of the numbers of witnesses
The advisability of a preliminary reference of issues to a
commissioner;
o Only resort to this if there are matters that the judge
cannot resolve because he needs an expert opinion.
Eg. Boundaries sa yuta
The propriety of rendering judgment on the pleadings, or
summary judgment, or of dismissing the action should a valid
ground therefor be found to exist;
The advisability or necessity of suspending the proceedings; and
o This is in the case were amicable settlement cannot
be had yet, parties needed more sufficient time to
settle the matter.
Such other matter as my aid in the prompt disposition of the
action.

Before pre-trial, there must be NOTICE provided for by the clerk of court.
- sent to the lawyer
GR: NOTICE TO THE LAWYER IS NOTICE TO THE CLIENT
EXCEPT: If there is GROSS NEGLIGENCE IN THE PART OF THE
LAWYER THAT DEPRIVED THE RIGHT OF THE CLIENT TO DUE
PROCESS.

B. Appearance of parties: (MANDATORY)
EXCEPT - When appearance may be excused:
There is a valid or justifiable reason for his absence (eg.
SICKNESS)
He authorized somebody to appear for him
o SPA is NOT enough, must be written authority to
settle the case amicably
The person authorized must be clothed with proper authority to
enter into settlement and stipulation of facts.
o IT MUST BE FULL AUTHORITY in:
settlement of facts
admission of facts
enter into settlement agreement
o If the authority is invalid IT IS AS IF HE DID NOT
ATTEND THE PRE-TRIAL

Civil Procedures SY 2013 -2014
JKB Rm 405 10

C. Effects of failure to appear:
Plaintiff Dismissal with prejudice
Defendant as in default (term not actually used now).
o Court will order the Plaintiff to present his evidence
EX-PARTE. Remedy is to file a motion for
reconsideration and not a motion to lift default.
Remedy of the Defendant if party is ordered to present evidence ex-parte
file motion for reconsideration

N.B. If the court grants the motion, there is no need to set for another
pre-trial.

D. Pre-Trial Brief:
Contents:
A statement of their willingness to enter into amicable
settlement or any modes of dispute resolution, summary of
admitted facts, issues to be resolved, etc
o Just the enumeration of those things you are willing
to discuss during pre-trial
A manifestation of their having availed or their intention to avail
themselves of discovery procedures or referral to
commissioners; and
The number and names of the witnesses, and the substances of
their respective testimonies.

*You must submit your pre-trial brief 3 DAYS BEFORE THE PRE-TRIAL
EX: You and your lawyer went to the free trial but you have not submitted
any pre-trial brief. What is the effect?
*NB. Failure to file pre-trial brief before the date of pre-trial
shall have the same effect as failure to appear to the pre-trial. So even if
they attended it is as if they are not recognized plaintiff can present
evidence ex-parte.

E. Record of Pre-Trial:
The proceeding for pre-trial shall be recorded and thereafter
the court will issue the pre-trial order.

Pre-Trial Order Shall govern the subsequent order of the cases




Rule 19
INTERVENTION
A. Definition
Intervention a pleading by a person, not party to a case, filed in order to
make him as a party to the case

When can you file intervention?
It can be filed ANYTIME before the court enters judgment.

B. Who may intervene:
Grounds for intervention
The intervenor has a legal interest on the matter under litigation
The intervenor has a legal interest in the success of ether of the
parties
The intervenor has a legal interest against both
The intervenor is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of
the court or of an offense thereof.
EX: A and B in dispute of the ownership of the land. And here comes X who
said that he is the real owner. But X is not a party to the case because the
case is only between A and B. So m.ingon si X nga PAAPILA KO BEH?
AWAY2 MO DHA NGA AKO MAN NA! Now thats intervention.
You intervene in order to protect your interest
*he may side with the plaintiff, or of the defendant, or he may contradict
both
You must file MOTION FOR LEAVE OF COURT it must be along with
pleadings that you want the court to admit (PLEADING IN INTERVENTION)
Side with Plaintiff Complaint in Intervention
Side with Defendant Answer in Intervention
Does not Side with Both Complaint in Intervention
o Making the Plaintiff and Defendant as Defendants of
your complaint

*Motion to Intervene is in the sound discretion of the court whether to
deny it or not.

C. Factors to consider whether or not to allow intervention:
Whether or not the intervention will unduly delay or prejudice
the adjudication of the rights of the original parties; and
Whether or not the intervenors right may be fully protect in a
separate proceedings
o If you can do it in separate proceeding, then do it
there

D. When and how to file:
The motion to intervene may be filed at any time before
rendition of judgment by the court. A copy of the pleading-in-intervention
shall be attached to the motion and served on original parties

*Motion to intervene is just ancillary to the Main Case
Q: What if the main case is dismissed?

E. Effect of dismissal of main action on the Intervention
Big Country Ranch Case
The dismissal of the main action is the dismissal of Intervention
because the latter is ancillary to the main case.

Metropolitan Banc and Trust Company Case
The dismissal if the main action is not dismissal of Intervention
if the latter can stand alone / independent to the main case. The
Intervenor must be allowed to prove his case.

F. Remedy in case Intervention is denied:
Mandamus will no lie Remember that the Intervention is
discretionary on the part of the judge.
So if you believe that the judges decision is of grave abuse of
discretion then CERTIORARI is the remedy.

Rule 20
Calendar of Cases

A. Duty of the Clerk of Court:
The Clerk of Court shall keep a calendar of cases Preference
shall be given to habeas corpus cases, election cases, special civil actions
and those so required by law

B. Assigned Cases
Cases are raffled to know where it will be conducted, usually
Tuesday afternoons.

Rule 21
Subpoena
A. Definition
Subpoena written order from the court requiring a person to appear in
order to testify. There are also instances where you are not only required
to testify but also to clean some records which are presented in court for
you to identify

2 Kinds of Subpoena:
Civil Procedures SY 2013-2014
JKB Rm 405

11
Subpoena duces tecum bring documents to bring and
identify in court
Subpoena ad testificandum bring to testify only
*If both to bring documents and testify Subpoena duces tecum ad
testificandum.

B. By whom issued:
The court before whom the witness is require to attend
o Issued by the court where the case is pending and
where the witness is called.
The court of the place where the deposition is to be taken
o Refers to the deposition taken
EX: Case is in Cebu. Witness is residing in Tacloban, he is also not willing to
attend (di nmu mapugos because he is residing 100km away from the court
where the case was filed). So you can get his testimony at Tacloban and the
Judge in Tacloban will be the one to preside in the taking of testimony.
Now remember that the Judge in Tacloban is not really the
judge in that case. His role is only to issue a subpoena to the witness to get
the testimony.

The officer or body authorized by law to do so in connection
with investigations conducted by said officers or body
o Refers to the officers who are in the ground who are
allowed to make investigation under their
investigatory power (eg. Fiscal)
Any justice of Supreme Court or of the Court of Appeals in any
case or investigation pending in the Philippines
o If subpoena is issued by the court and you did not
obey contempt of court

C. Form and Contents: not discussed

D. Grounds of a motion to Quash Subpoena:
Subpoena Duces Tecum
If the subpoena is unreasonable or oppressive
The relevancy of the books, things or documents does not
appear;
o that document that will be presented has no
relevance.
The person in whose behalf the subpoena is issued fails to
advance the reasonable cost for the production thereof

Grounds of a Motion to Quash Subpoena Ad Testificandum
That the witness is not bound thereby (VIATORY RIGHT).
o Right of the witness to refuse the Subpoena
Testificadum because he resides more than 100km
from the court

E Subpoena for Disposition:
Must be in writing and must be properly served.

F. Service of Subpoena:
GR: One cannot be compelled to testify if he is not served with written
subpoena.
EXCEPT: If said person is inside the courtroom during hearing of the case,
he may be compelled to testify.

G. Effect of failure to appear CONTEMPT OF COURT

H. Exception to the Rule
Viatory Right of a Witness the right of the witness to refuse to
testify (Tacloban Example Earlier)

People vs Montejo
Viatory Right applies only to CIVIL CASES; not applicable to Criminal
Cases
Why? Because of the Constitutional Rights of the Accused the right of the
accused to have a compulsory process to secure the attendance of his
witnesses and production of evidences in Criminal Cases.

Rule 22
Computing the Period
mentioned throughout the discussions

January 16, 2014
Modes of Discovery
Using the modes of discovery, you can compel the other party
to lay all their cards in the table so that there be no more surprises during
the trial of the case.

1. Deposition Taking (Rule 23)
2. Written Interrogatories to Parties (Rule 25)
3. Request for Admission of Adverse Parties (Rule 26)
4. Production or Inspection of Documents and Things (Rule 27)
5. Physical and Mental Examination of Persons (Rule 28)

Rule 23
Deposition Pending Action
Deposition Taking most effective tool to know what are the evidence in
the hands of other party.
Deposition is actually the advance taking of the testimony of
the person - a party to the case, prospective witness or any person who
may have knowledge about the subject matter of the case. You can take
his testimony in advance in writing.

Deponent the prospective witness subject of the deposition

Can be done through
With Leave of Court when the court has acquired jurisdiction
of the defendant but the defendant has not filed his answer
o When? It is the moment the defendant receives the
summons, the court acquires jurisdiction. He has 15
days to file an answer. Within that 15-day period or
before he has file an answer, the plaintiff may take
the deposition of any person - prospective witness.
Without Leave of Court when there is already an answer filed
by the defendant

2 Kinds of Deposition:
Pending Action De Benne Esse (Rule 23) deposition pending
action.
Before Action In Perpetuam Rie Memoriam (Rule 24)
deposition pending appeal or before an action.




Deposition Pending Action
EX: There is a pending case. A party to the case (plaintiff or defendant) can
take the deposition of any person taking the testimony of that person
FOR FUTURE USE DURING THE TRIAL.
It could be done by: Oral Examination or Written Interrogatories

Oral Examination you ask questions to the deponent directly orally.
This is the same as direct & cross examination except that the
one who will listen to the testimony is not necessarily the
judge BUT ANY PERSON WHO MAY QUALIFY AS DEPOSITION
OFFICER.

Written Interrogatories - the requesting party who wants to take the
depositions will write all his question in a paper sent to the deposition

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officer who will also send it to the lawyer of the other party who will write
all the answers.

*What are the Questions asked? ANY QUESTIONS provided it is relevant
and material, and it is not privilege information

Privilege Information confidential matters
EX: confession to the priest, lawyer-client relationship, doctor-patient
relationship, husband and wife conversations

*When can we use Deposition? Even before the trial starts.

*When you take deposition of any person , you are not compelled to use
the person as a witness. If favorable, then you use him. If not, I can always
refuse to use him in the case. You are just fishing for evidence.

Note: You can take the Deposition of the other party but you are not
compelled to use the deposition during trial.

One use of deposition is for early disposition of the case by amicable
settlement. If you know what are the evidences of the other party, mas
sayu nmu mahibaw.an kung pildihunon ka or dili. If you are about to lose
the case, aw bai settlement nlang ta bi.

Use of Deposition:
To contradict or impeach the testimony of the deponent as a
witness;
o Admission of facts, genuineness of a document, etc.
EX: At the start of the trial, I know that you are going to use this person as
a witness. The good thing about this is that that person that you are going
to use in the deposition has not been coached by the lawyer of the other
party yet. The tendency is that they are too honest to answer your
question.
Now if the other party used him as a witness and during the trial
he says contradictory statements, you can always use the deposition you
have taken from him to rebut his statement. Nganu lain na man imong
answer witness? Are you now contradicting yourself? Now he will appear
to be a liar in the eyes of the court.
Deposition of a party or an officer of the corporation may be
used by the adverse party for any purpose
Deposition of a witness, whether or not a party, may be used by
any party for any purpose in the court finds:
o The witness is dead,
o The witness resides more than 100 kilometers from
the court
o The witness cannot testify because of age, sickness,
or infirmity
o The witness did not appear despite subpoena issued,

EX1: Client wants to stay abroad. Lawyer should take deposition if the
witness is no longer available to go to trial.

EX2: Trial is in Cebu, Witness is in Davao. You use Deposition to take the
testimony of that witness para di na sya mu ari sa Cebu.

EX3: Himatyon na imong witness, you think he cannot make it for trial of
the case. You took his deposition but when the trial start, buhi pa man d.i
siya. Can you use his deposition as evidence in court? NO
- Deposition cannot be used as a substitute if the deponent is present or
available

Objection to adminissibility
Deposition Officer cannot rule on the objection
If there are objections it will just be recorded set to the judge of the
case.
EX: I wanted to take deposition by oral examination. of a witness from
Cagayan De Oro. I will make notice to the court and the other party. If it is
oral, then you must have to appoint deposition officer (not necessarily the
judge, it could be a lawyer of the place or any person authorized to
administer).
If I have a lawyer friend, then you can request him to be the
presiding judge in the disposition. If there are objections of the other party,
he will record the objections and send it back to the judge of Cebu. He
cannot decide like a judge of the case.

What if the officer in the deposition is A JUDGE OF THE COURT OF THE
PLACE WHERE THE WITNESS RESIDES?
If the presiding judge in the deposition is a Judge in Cagayan De
Oro REMEMBER THAT HE IS NOT THE JUDGE OF THE CASE. HE CANNOT
RULE ON THE OBJECTION OF THE OTHER PARTY.
The difference is that if it is a Judge who will be the judge in
the deposition, HE HAS A POWER TO ISSUE A SUBPOENA. If dili gali
mutunga ang witness, he has the power to site him in contempt. He can
order the arrest of that witness. This is the advantage if it is a Judge as the
deposition officer.

D. Who can be Deposition Officer:
*If deposition is taken in the Philippines
Judge
Notary Public
Persons authorized to administer oath under Sec. 14

*If deposition is taken outside the country
On notice before a secretary of embassy or legation, consul
general, consul, vice-consul, or consular agent of the Republic of
the Philippines;
Before such person or officer as may be appointed by
commission or under letters rogatory; or
The person referred to in Section 14 thereof

Deposition taken outside the country
By oral examination or written interrogatory. But oral
examination is expensive because you have to bring your team to the
foreign country. Written interrogatory is more practical but this time it is
different on certain matters.
Who will be the deposition officer? It could be the Secretary of
Philippine Embassy, Consul General, Vice Consul or Consular Agent of the
Philippines in that State.
This time the consuls will just invite the witness to their office
and the written question will be just read to the witness. His answers will
just be recorded.

E. Commission and Letters Rogatory:
What if it is of a country without a diplomatic relations with the
Philippines no consuls? You can request a lawyer in that country to be
the deposition officer. Just request the court to make a Letter Commission.

Letter Commission letter request to the Philippine consuls

What happens if the witness will not appear? Can the consul or the
lawyer of that place order the arrest of the witness? NO, he has no power.
Your remedy is LETTER ROGATORY

Letters Rogatory court to court requests by way of letter. Requesting the
foreign court to assist in the deposition. It is because of the Principle of
Reciprocity if similar situation will be requested here, our court will do
the same.
The foreign court will send a subpoena to the defendant. Arrest
if he will not come.
It is the last recourse

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JKB Rm 405

13
F. Disqualification for a Deposition Officer:
He must not be related to the requesting party up to the 6
th
Civil
Degree.

G. Diposition upon oral examination:
Notice sent first to the other party and to the court (Sec 15)
Order of protection of Parties and Opponent (Sec. 16 and 18)
o If the deposition is amount to harassment
How deposition upon oral examination taken (Sec. 17 to 22)
o Deposition must have a Transcriber to write
everything right away kung mahimu pahuwatong
ang party para mahuman dayun.
o The Transcript of Stenographic Notes will be shown
to the parties if there are no objections.
o Then the parties will sign the transcript and it will be
placed in a brown envelope to be mailed to the
court.
o During the presentation of evidence, you can just say
that you will present the deposition paper brown
envelope will be opened as if you have already
presented your witness.
o The objection of the other party will just say what
number he is objecting as recorded in the deposition
paper and ask for the ruling of the judge of the said
objection.
Effect of requesting partys failure to attend and serve
subpoena (Sec. 23)

H. Deposition upon written interrogatories
Written interrogatories shall be served upon every party with
notice,
The notice shall state the name and address of the person to
answer it,
The name, title and address of the position officer,
Within 10 days the person asked may serve cross-
interrogatories
Deposition officer shall give notice of its filing in court (Sec. 27)

Rule 24
Deposition Before Action or Pending Appeal
Before Action done before the case
EX: You wanted to file a case but you lack evidence. One of your witness is
about to die, so you will take his deposition.
Pending Appeal you have lost the case in lower court and you appealed
good only when there are evidences newly discovered which is
not taken into account by the lower court
EX: Pending appeal you discovered evidence that could strip up your case
in your favor. But the evidence involves testimony of a witness himatyon
na sd.
If the CA grant your appeal and it will return back the case to
the lawyer court at least you have already preserved your evidence.

A. Petition to take deposition before action:
Must be done with leave of court
In the court of the place where the expected adverse party
resides

B. Contents of the Petition:
That the petitioner expects to be a party to an action in a court
of the Philippines but is presently unable to bring it or caused it
to be bought
The subject mater of the expected action and his interest
therein;
The facts which he desires to establish by the proposed
testimony and his reasons for desiring to perpetuate it;
The names or a description of the persons he expects will be
adverse parties and their addresses so far as known; and
The names and addresses of the persons to be examined and
the substance of the testimony which he expects to elicit from
each, and shall ask for an order authorizing the petitioner to
take the depositions of the persons to be examined named in
the petition for the purpose of perpetuating their testimony.
(Sec. 2)

- The petitioner shall serve a notice upon each person named in the
petition as an expected adverse party, together with a copy of the petition,
- The court will decide whether the position shall be by oral examination or
by written interrogatories.

C. Deposition pending appeal:
When taken:
During the pendency of an appeal
Even before appeal is filed, but, the period to appeal has not yet
expired.

Rule 25
Interrogatories to Parties
A. How is it done:
Is leave of court required before one can avail of interrogatories to parties?
With Leave of Court - when the court has acquired jurisdiction
of the defendant but the defendant has not filed his answer
o When? It is the moment the defendant receives the
summons, the court acquires jurisdiction. He has 15
days to file an answer. Within that 15-day period or
before he has file an answer, the plaintiff may take
the deposition of any person - prospective witness.
Without Leave of Court when there is already an answer filed
by the defendant

It can be Oral Examination or Written Interrogatories

Q: Is it the same as Written Interrogatories in Rule 23? NO
Interrogatories here is addressed only to the party. In Rule 23, it is address
to the prospective witness.

B. Answer to Interrogatories:
Within fifteen (15) days after service thereof, unless the courts,
on motion and for good cause shown, extends or shortens the period

C. Objection to Interrogatories
Within ten (10) days after service thereof, with notice as in case
of a motion;

D. Number of Interrogatories:
Not more than one, without leave of court

E. Effect of failure to serve written interrogatories:
A party not served with written interrogatories may not be
compelled by the adverse party to give the testimony in open court, or to
give a disposition pending appeal (Sec. 6)
- intended by the rules to compel the lawyer to use the mode of discovery

Before in the OLD RULE, a party can only use the adverse party if he is
inside the court room. This is intended for a surprise.
Now, NEW RULES, you cannot compel the adverse party to take the
witness stand if you did not avail of deposition under Rule 25.

Rule 26
Admission by Adverse Party
A. Request for Admission:

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At any time after issues have been joined, a party may file and
serve upon any other party a written request for the admission by the
latter of the genuineness of any material and relevant document
described.
Leave of court is not necessary here. This is because there is
already an answer when you avail of this mode of discovery.

B. Implied Admission:
The request is deemed admitted if the party requested fails to
answer the request within fifteen (15) days after service thereof.

So if you are asked if it is genuine, you did not answer Then you are
deemed to have impliedly admitted the genuineness of the document.

Plaintiff filed a case with attachment of promissory note signed
by the defendant. Defendant answered that it is genuine in his answer.
Before the start of the trial, the plaintiff sent a letter to the defendant
requesting the admission of genuineness.
When a matter is already effectively denied in the pleading, as
in the case of an actionable document attached to the complaint (ie.
Promissory note) but was specifically denied in the answer, there is no
need any more to ask it again under Rule 26. If requested and not denied,
there is no admission. (Po vs CA)

C. Effect of Admission:

D. Withdrawal of admission:

E. Effect of failure to file and serve request for admission

GR: If you did not serve a request for admission on the adverse party of
material or relevant facts at issue which are, or ought to be, within the
personal knowledge of the latter, you will not be permitted to present
evidence on such facts.

EXCEPTION:
Unless otherwise allowed by the court for good cause shown,
and
To prevent a failure of justice.

Rule 27
Production or Inspection of Documents or Things
Here, the attached documents are not clear. Hanap pas papel de hapon.

A. How is it done:
Before the trial, you can ask for the production of the
documents in clear copy so that you can have it photocopied

B. Requisites for a valid inspection of documents or things (REAL OR
PERSONAL):
A motion (leave of court) must be filed;
The motion must show good cause for its grant
Notice of motion must be furnished to all parties
The motion must sufficiently described the documents or things
to be produced or examined
The document or things to be examined must contain evidence
material to the pending action;
The documents or thing to be examined must not be privileged;
and
The documents or things to be examined must be in the
possession of the adverse party may at least, under his control


Rule 28
Physical and Mental Examination of Person
What if it is a cadaver? Is it included in this Rule? NO, this rule is only for
the person A LIVING PERSON. Cadaver is different, it is already a thing
applicable in Rule 27 Inspection and Production of a thing.

A. When examination may be ordered:
In an action in which the mental or physical condition of a
party is in controversy, the court in which the action is pending may in its
discretion order him to submit a physical or mental examination by a
physician (Sec. 1)
The order for examination may be made only upon motion for
good cause show an upon notice to the party to be examined and to all
other parties, and shall specify the time, place, manner, conditions and
scope of the examination and the person or persons by who it is to be
made (Sec. 2).

B. Report of Findings:
If requested by the party examined, the party causing the
examination to be made shall deliver to him a copy of a detailed written
report of the examining physician setting out his findings and conclusions.

But can the doctor refuse to give the result? YES, by reason of doctor-
patient relationship. It is a privilege communication.

REMEDY: The court will require the patient to order his doctor to give the
report. Otherwise, you have deemed to have waived the doctor-patient
relationship.

C. Waiver of privilege:
By requesting and obtaining a report of the examination so
ordered or by taking the deposition of the examiner, the party examined
waives any privilege he may have in that action or any other involving the
same controversy, regarding the testimony of every other person who has
examined or may thereafter examine him in respect of the same mental or
physical examination. (Sec. 4)

Rule 29
Refusal to Comply with Modes of Discovery
A. Refusal to Answer:
Movant of deposition upon oral examination may proceed to
ask questions on other matters.
Movant may ask from the court for an order to compel from the
deponent to answer. If the court finds the refusal to answer
unreasonable, it may order deponent and counsel to pay
reasonable expenses incurred by the proponent in obtaining the
order.
If the court finds the motion unjustifiable, it may order the
proponent to pay reasonable expenses in refusing motion.

B. Contempt of Court:
C. Other consequences:
If the refusing party is the plaintiff, the court may dismiss his
case;
If the refusing party is the defendant, he may declared as in
default
Refusal to allow the inspection of a thing or document shall be
taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order.
If a party refuses to admit the genuineness of a document under
Rule 26, and it is proven later on that the document is genuine,
the refusing party may be ordered to pay the reasonable
expenses incurred in making such proof, including attorneys
fees.