RULE 16 MOTION TO DISMISS

BUT: This ruling has been tempered by jurisprudence.

Sec. 1. Grounds. Tijam vs. Sibonghanoy Q: When do you file a motion to dismiss (MTD)? A: Within the time for but before filing the answer. A. By filing a motion for Bill of Particulars or a motion for extension of time, you have already submitted yourself to the courts jurisdiction. Some cases rule that even if summons were not properly served, if it actually came to defendants attention, the DEFECT IS CURED! SC: After the CA decided the case, defendant realized that all the while the court had jurisdiction. SC did not dismiss the case. When lack of jurisdiction over the subject matter is not raised at the earliest opportunity, you shall be barred by estoppel. This is the DOCTRINE OF ESTOPPEL BY LACHES (failure to litigate for an unreasonable length of time). Note: the Tijam case should only be applied when the facts are clearly there. The ruling did not overturn the GR.

Query: This argument may just be used to counter the technical requirements under R14,S11 as enunciated in E.B Villarosa vs. Benito. Linger and Fisher vs. IAC Facts: The sheriff served summons improperly on defendant, and defendant subsequently filed a motion to dismiss on the ground that the court has no jurisdiction over his person, SC: If sheriff did not know how to serve the summons, why should the plaintiffs complaint be dismissed when it is not his fault. The correct procedure is for the court to issue another summons and direct that the sheriff should serve it properly. Remedy: Alias summons will be issued, directed to the sheriff and served again.

4 Principles on lack of jurisdiction over subject matter i. DETERMINED BY THE ALLEGATION in the complaint ii. when used as a ground in filing MTD, defendant HYPOTHETICALLY ADMITS all the allegations in the complaint to be true. iii. ONCE ACQUIRED, COURT RETAINS the jurisdiction over the case until terminated. iv. it MAY BE RAISED IN THE FF: C. this is non-compliance with Rule 4 in the answer in the course of trial after the trial after judgment even for the first time on appeal.

On lack of jurisdiction over your person plus other grounds in one motion to dismiss. OLD RULE- when you file a motion to dismiss based on lack of jurisdiction over your person, PLUS, other grounds like prescription, you are in effect WAIVING the ground of lack of jurisdiction. NEW RULE When a motion to dismiss citing lack of jurisdiction over your person is filed, PLUS, other grounds, There is NO WAIVER in effect [La Naval Drug Corporation vs. CA, 236 S 78]. Note: This Naval Case has now been incorporated under the Rules of Court (R14, S20).

Rule: If MTD is denied based on this ground, DO NOT FILE AN ANSWER. Remedy: File a Special Civil Action of Prohibition under Rule 65 immediately. If you file your answer and go to trial, you waive the objection (Pangasinan Transporatation Co. vs. Yatco, 21 S 658).

B. One of the most important ground for a MTD.

D. Either: i. plaintiff does not posses the necessary qualification to appear in trial (e.g. minor, insane).

GR: It can be raised anytime (R9), at any stage of the proceedings even for the first time on appeal.

ii. plaintiff does not have character or representation (e.g. plaintiff claims he is a guardian but is not).

If A loses the case, in effect title will automatically be granted to B, rendering unnecessary the second case. PrinciPle in Litis pendentia: Whoever wins the first case th will bar the second. This illustrates the 4 requisite.

Lack of legal CAPACITY to sue

Lack of legal PERSONALITY to sue

Teodoro vs. Mirasol Disability of plaintiff Hence, must object on the ground of LACK OF LEGAL CAPACITY TO SUE. Plaintiff is not real party in interest Hence, must object on the ground of NO CAUSE OF ACTION, bec. there is no cause of action in favor of the agent) Thus in response to the question as to which case must be dismissed, the first or the last one filed, the SC said EITHER ONE CAN BE DISMISSED. Victronics Computers Inc. vs. RTC SC: As a general rule, priority in time gives preference in law. Last case in, first out. But the case of Teodoro may also be followed, if uses the principle of MORE APPROPRIATE ACTION, such that regardless of what was first filed, the court determines the more appropriate action to remain. Roa Magsaysay vs. Magsaysay i. Founded on SAME FACTS ii. Identity of PARTIES iii. Identity of RIGHTS ASSERTED & RELIEFS SOUGHT. iv. Identity of the 2 cases such that a judgment in one would amount to RES ADJUDICATA. Tambunting vs. Ong (1950) Mortgagor filed a case for annulment of real estate mortgage. Mortgagee then filed an action for foreclosure of the same mortgage. Mortgagor, the plaintiff in the first case now files a MTD the second case on the ground of litis pendentia. SC: While it is true that the second case will have no more leg to stand on if the mortgagor in the first case wins, but if the first case is dismissed, it does not mean the second will also be dismissed. In fact, with more reason the mortgagee has the right to foreclose. Francisco vs. Vde. De Blas A filed a case against B for recovery of piece of land accion publiciana. While pending, B filed a case against A for quieting of title. I: is there litis pendentia? SC: Yes. If A wins the case, it will bar the second. SC: The trial court ordered the dismissal of the first case by applying another criterion, the INTEREST OF JUSTICE. In applying this, the court should ask which cases is in a better position to serve the interest of justice or which should remain to serve the interest of justice taking into account the nature of the controversy. On Which Case Must be Dismissed. GR: Priority in time rule. Dismiss the second case, let the first remain. Exc: The GR will not be followed thus the first case may be dismissed based on: i. appropriate action ii. interest of justice SC: The law says there is another action pending. It does not say another PRIOR action pending.

E. Lis Pendens - one of the most important grounds

Requisites of Lis Pendens

note: where the first case filed was merely an anticipatory suit, it must be dismissed and the subsequent case must remain. (UPSI vs. CA, 233 S 86). Pampanga Bus Co. vs. Ocefemia Facts: X filed a case against Y on Jan. 5. Y not knowing a case was filed against him, filed on Jan. 10 a case against X. On Jan. 15 Y received summons as to the first case.

X then filed a MTD the second case on litis pendentia. Y opposed saying that at the time Y filed the case, there was NO PENDING ACTION, since he received the summons only after he had filed his case. I: When does an action become pending?

Rule: When defendant files MTD under this ground, he HYPOTHETICALLY ADMITS the truth of all the allegations raised in the complaint. Meaning, hypothetical admissions are limited to the relevant and material facts well pleaded in the complaint and inferences fairly deductible therefrom. Hence if you allege something 100% false and the court know it, but you filed a MTD, you are deemed to admit everything there is true except matters which are 100% false and which the court know to be false. Tan vs. CA

SC: An action becomes pending upon the filing of a case in court and the payment of docket fee. The action does not become pending only from the time you receive summons. Litis Pendentia Effect: - one case will be dismissed, the other will remain. - no contempt of court ECC vs. CA 257 S 717 SC: Forum-shopping exists where the elements of litis pendentia are present. The test therefore in determining presence of forum-shopping is whether in the 2 or more cases pending, there is identity of a) Parties b) Rights or Causes of Action c) Reliefs sought. Forum-shopping does not require a literal identity of parties. It is sufficient that there is identity of interest represented. F. 2 Grounds available 1. Barred by prior judgment (Res Adjudicata) 2. Barred by statue of limitations (Prescription) On Prescription of Grounds GR: The grounds on MTD are WAIVABLE (R9, S1) Exc: Grounds NOT WAIVABLE. i. lack of j over subject matter [R16, S1 (b)]. ii. litis pendentia [R16, S1 (e)] iii. Res Judicata [R16, S1 (f)]. iv. Statute of Limitations [R16, S1 (f)] G. Important ground. Forum Shopping Effect: both may be dismissed. Lawyer may be subjected to disciplinary action.

MTD, does not admit the truth of the ff: a. mere epithets of fraud b. allegations of legal conclusions c. erroneous statement of law d. mere inferences or conclusions from unstated facts. e. mere conclusions of law f. allegations of fact the falsity of which is subject to judicial notice. g. matters of evidence. h. surplusage and irrelevant matters i. scandalous matters inserted merely to insult opposing party j. to legally impossible facts k. facts unfounded by a record incorporated in the pleading l. general averments contradicted by more specific averments. On determination of whether there is a cause of action GR: In determining the existence of a cause of action, the court cannot look at the evidence. All must be base on the complaint, no appreciation of any evidence. Exc: Where evidence has already been presented in the main cause of action because of the application for preliminary injunction, evidence may be considered (Santiago vs. Pioneer Savings Bank). H. I. Unenforceable because they were not reduced into writing under Art. 1403 of the Civil Code. Unenforceable contracts are valid but unenforceable, hence if unenforceability is waived, they can still be enforced.

Examples of Statute of Frauds (Art. 1403) i. contract that by its terms is not to be performed within 1 yr. from the making of such contract; ii. a special promise to answer for the debt, default, or miscarriage of another.

iii. an agreement for the sale of goods, chattels or things in action, at a price not less than P500 iv. an agreement for the leasing for a longer period than 1 year, or for the sale of real property or an interest therein. v. a representation as to the credit of a third person. J. Examples i. failure to exhaust administrative remedies ii. failure to undergo Brgy. Conciliation iii. allegation in the complaint that earnest efforts towards a compromise was made.( in cases under Art. 151 of the Family Code).

3. Jurisdiction over the subject matter, once acquired by the court upon the filing of the complaint, the court retains the jurisdiction over that case until the case is terminated. Any subsequent development or any amendment of the law will no longer deprive the court of its jurisdiction. ONLY POSSIBLE EXCEPTION: If the new statute is intended to be curative in character- then the rule on adherence of jurisdiction does not apply.

4. Lack of jurisdiction over the subject matter may be raised: In the answer In the course of the trial

ADDITIONAL NOTES: MOTION TO DISMISS- must be raised before filing an answer. GROUNDS: 1. Court has no jurisdiction over the person of the defendant. When there is absence or improper service of summons. When you file a motion a motion to dismiss citing the lack of jurisdiction over your person together with other grounds, there is no waiver on the defect of lack of jurisdiction. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall not be deemed a voluntary appearance. ( LA NAVAL DRUG CORP. VS. CA )

After the trial After the judgment For the first time on appeal.

3. Venue is improperly laid. When your motion to dismiss on the ground of improper venue is denied you remedy is : Special Civil Action of Prohibition under Rule 65. and you should resort to it immediately because if you will file your answer and go to trial, in effect, you will be waiving the objection.

4. Plaintiff has no legal personality to sue. > Two possible meaning of plaintiffs lack of legal capacity to sue: 1. When the plaintiff does not possess the necessary qualifications to appear at the trial such as when the plaintiff is not in full exercise of his civil right like when he is a minor or insane; 2. When the plaintiff does not have the character or representastion which he claims like he claims to be a guardian when in reality he is not.

2. Court has no jurisdiction over the subject matter of the claim. IMPORTANT PRINCIPLES: 1. Jurisdiction over the subject matter is determined by the allegation in the complaint. They are determined in the allegation of the complaint itself, not by the allegation of the defendant in his motion to dismiss. 2. When a defendant files a motion to dismiss on the ground that the court has no jurisdiction over the subject matter, the defendant hypothetically admits all the allegations in the complaint to be true.

LACK CAPACITY refers to disability of plaintiff.

OF the the

LACK OF LEGAL PERSONALITY TO SUE refers to the fact that the plaintiff is not the real p[arty in interest, in which case, the ground for dismissal would be that

the complaint states no cause of action. 5. Another action is pending between the same parties for the same cause. (LITIS PENDENTIA) REQUISITES OF LITIS PENDENTIA: 1. Identity of parties between the two actions or at least such as to represent the same interest; 2. Identity of rights asserted and relief prayed for; 3. Relief must be founded on the same facts; 4. Identity in these particulars should be such that any judgment which may be made on the other action will, regardless of which party is successful, amount to res adjudicate in the action under consideration. DISMISSAL OF ACTION IN FAVOR OF ANOTHER:

2. that there is another action pending between the same parties for the same cause; 3. that the action is barred by prior judgment; 4. that the action is barred by statute of limitations. The court shall dismiss the claim. 7. The pleading asserting a claim states no cause of action. The principle to remember: Whether the pleading states a cause of action is determined only by the allegations in the pleading. The lack of cause of action is not a ground for the dismissal of the action under rule 16. the ground is the failure of the complaint to state a cause of action which is obviously not the same as the plaintiff having no cause of action. (MUNICIPALITY OF BINAN VS. GARCIA ) General rule: Averments in the complaint are deemed hypothetically admitted upon the filing of a motion to dismiss grounded on the failure to state a cause of action. Exceptions: (PLS SEE Tan v. CA, p 44) 8. The claim has been paid, waived, abandoned or extinguished. 9. The claim is unenforceable under the statute of frauds. 10. Conditions precedent has not been complied with. CONDITIONS PRECEDENT:

THE

1. Priority in time ( action filed first prevails ) 2. More appropriate action ( can best resolve the case ); 3. In the interest CONSIDERATIONS: of justice:

Nature of the controversy; Comparative accessibility of the court to parties; And similar factors.

1. Exhaustion of Administrative remedies; 2. amicable settlement between family members;

6. he action is barred by prior judgment or by the statute of limitations. There are two grounds here: 1. Barred by prior judgment ( Res Adjudicata) 2. Barred by Statute of Limitations ( Prescription) The grounds on motion to dismiss are waivable based on Rule 9, Section 1- defenses and objections not pleaded whether in the motion to dismiss or in the answer are deemed waived. HOWEVER when it appears from the pleadings or the evidence on record :

3. Barangay Conciliation Law a. parties ( residents municipality) ITEMS COMPROMISE: of same city or

b. parties ( natural persons, not public officers ) NOT SUBJECT TO

1. Civil status of persons; 2. Validity of marriage and legal separation; 3. Any ground for legal separation; 4. future support; 5. Jurisdiction of Courts, and 6. future legitime. GENERAL RULE: On hearing on a motion to dismiss, the defendant is allowed to present evidence to prove the ground of his dismissal.

1. that the court has no jurisdiction over the subject matter;

EXCEPTION: He is not allowed when the grounds are: 1. Lack of jurisdiction over the subject matter 2. the pleading asserting the claim states no cause of action. RESOLUTION OF MOTION TO DISMISS 1. DISMISS THE MOTION) ACTION ( GRANT THE

2. In the same action ( notify the court within 15 days from notice of motion to dismiss served by plaintiff) * GROUNDS FOR THE DISMISSAL OF PLAINTIFFS FAULT 1. FAILURE TO APPEAR IN COURT TO REPRESENT EVIDENCE IN CHIEF; 2. Failure to prosecute for an unreasonable length of time;

2. DENY THE MOTION 3. ORDER THE PLEADING AMENDMENT OF THE

3. Failure to comply with the amendment, bill of particulars );

Rules

Amendment: a matter of right before a responsive pleading is served despite order to dismiss. MOTION TO DISMISS GRANTED ( the claim may be refilled ) EXCEPTIONS: 1. When the ground is res adjudicate; 2. When the ground is statute of limitations; 3. when the ground is payment, waiver, claim is extinguished. Ground for Motion to Dismiss pleaded as an affirmative Defense- amendment is no longer a matter of right. DISMISSAL OF THE ACTION BY PLAINTIFF A matter of right- before service of answer or motion for summary judgment. By filing a notice of dismissal- a court order will be issued confirming such dismissal. Without prejudice ( EXCEPTIONS) 1. Notice clearly says otherwise ( plaintiff has decided ); 2. TWO- DISMISSAL RULE dismiss same complaint twice ( Adjudication upon merits- with prejudice)

4. Failure to comply with any order of the court. The court may dismiss the complaint even without motion. Has the effect of an adjudication upon the merits.

RULE 17 DISMISSAL OF THE ACTION How? By filing a NOTICE OF DISMISSAL at ANY TIME BEFORE service of the answer or a motion for Summary Judgment. There are two types of dismissal: 1. Dismissal with prejudice- the case can no longer be re-filed; 2. Dismissal without prejudice- the case can be re-filed. Is the dismissal under Section 1 with or without prejudice? A: GENERAL RULE : The dismissal is WITHOUT PREJUDICE. The cae can be re-filed. EXCEPTION: ( Dismissal is final) 1. When in the notice of dismissal itself, the plaintiff himself stated that he is dismissing his own complaint with prejudice; 2. When a notice operates as an adjudication upon the merits when filed by the plaintiff who has once dismissed in a competent court an action based on or including the same claim. (The Two- Dismissal Rule)

How to revive the complaint- depends on whether the dismissal has become final or executory ( 15day rule): 1. If final- file another complaint 2. If not yet final 9 revived within 15 days )- motion to set aside the order of dismissal and revive the case.

COUNTERCLAIM SERVICE OF MOTION

Under Section 2: General rule: if you dismiss the complaint, the compulsory counterclaim is also dismissed. Exception: The defendant can revive the compulsory counterclaim within

PLEADED

BEFORE

Main action dismissed by plaintiff- the counterclaim still exists and may be proved: 1. In a separate action- filed by the defendant;

15 days. This is the radical change.

3. The necessity or desirability of amendments to pleadings; 4. The possibility of obtaining stipulations or admissions of facts or of documents to avoid unnecessary proof; 5. The limitation of the number of witnesses; 6. The advisability of a preliminary reference of issues to a commissioner; 7. The propriety of rendering judgment on the pleadings, or summary judgment, or of dismissing the action should a valid ground therefore be found to exist; 8. The necessity of suspending the proceedings; 9. Such other matters as may aid in the prompt disposition of an action. Parties and their counsel should appear in the pre-trial ( Consequence: Dismissal with prejudice ) Non appearance is excused if: 1. Valid cause is shown to exist; 2. A Representative is sent ( fully authorized in writing ) To enter into an amicable settlement; To submit to alternative modes of dispute resolution; To enter into stipulations or admissions of facts and of documents.

Under Section 3:

The following are the grounds for the dismissal of the case: 1.The plaintiff fails to appear on the date of the presentation of his evidence-in-chief on the complaint for no justifiable reason or cause. 2.The plaintiff fails to prosecute his action for an unreasonable length of time for no justifiable reason or cause; 3. The plaintiff fails to comply with the Rules of Court or any order of the court for no justifiable reason or cause.

GENERAL RULE: the court should not dismiss the case upon it own initiative, because the grounds for dismissal are waivable. If the defendant fails to move for dismissal, he is waiving the defect.

EXCEPTIONS: 1. Section 3, Rule 17 ( Plaintiffs fault); 2. When on its face, the complaint shows that the court has no jurisdiction over the subject matter; 3. When there is litis pendentia, or res adjudicate, or when the action has prescribed; 4. Under the Summary Rules, the court is empowered to dismiss immediately without any motion.

In the case of a corporation: GENERAL RULE: ONLY the board of directors have the power to enter into a compromise. EXCEPTION: When there is a board resolution issued.

GENERAL RULE: Dismissal due to the fault of the plaintiff is with prejudice. Unless the court provides

EXCEPTION: otherwise.

RULE 9 RULE 18 PRE-TRIAL MATTERS TO BE CONSIDERED DURING THE PRE-TRIAL 1. The possibility of an amicable settlement or of a resort to alternative modes of dispute Resolution; 2. the simplification of the issues; failure to answer file an

RULE 18 failure to appear during the pre-trial no need to prove defense/ answer already filed. remedy is motion reconsideration for

there is a need to prove meritorious defense remedy is motion to lift the order of default

CONTENTS OF A PRE-TRIAL BRIEF:

1. Statement of willingness to enter into dispute resolution; 2. Summary of admitted facts; 3. Issues to be tried or resolved; 4. Documents to be presented, stating their purpose; 5. Manifestation of the availment of discovery procedures or referral to commissioners; and 6. Number and names of witnesses and their testimonies. DISMISSAL OF COMPLAINT DUE TO PLAINTIFFS FAULT 1. Failure to appear during the trial for the presentation of his evidence in chief t prove his cause of action; 2. Failure to appear during the pre-trial; 3. Failure to file a pre-trial brief; 4. Failure to comply with the provisions in the Rules of Court; 5. Failure to comply with the order of the court.

the corresponding barangay who are actually residing therein. Residence alone, without membership, in said barangays would not be an accurate and reliable criterion, considering that such residence may be actual but be merely temporary, transient or categorized into other permutations as in the case of a house guests or a sojourner on a visit of a day or two. On the other hand, mere membership in a barangay, without actual residence therein , should not suffice since absentee membership would not subserve the avowed purpose of the law for lack of the common bond and sense of belonging generally fostered in members of an identified aggroupment. Take Note: The barangay cannot decide. It can only convince the party to settle. The barangay court has no power to make decisions.

CASES NOT SUBJECT TO AMICABLE SETTLEMENT AT THE KATARUNGANG PAMBARANGAY: 1. Where one party is the government or a subdivision or instrumentality thereof: 2. Where one party is a public officer or employee, and the dispute relates to the performance of his official function; 3. Offenses punishable by imprisonment exceeding one year or a fine exceeding Php 5,000; 4. Offenses where there is no private offended party.

PRESENTATION OF EVIDENCE EX PARTE against the defendant: 1. Declared in default answer; for failure to file an

2. Failure to appear during pre-trial; 3. Failure to file a pre-trial brief.

DISPUTES NOT COVERED BY THE AUTHORITY OF THE LUPON: 1. Those involving parties who resides in barangays of different cities or municipalities unless their barangay are adjoining. Those involving real property located in different cities or municipalities.

CONTENTS OF THE PRE-TRIAL ORDER- shall control the subsequent course of the action (unless modified) All pleadings are deemed superseded. KATARUNGANG PAMBARANGAY LAW Otherwise known as Barangay Conciliation Law which mandate that before an action can be filed by an individual complainant against another individual, both of them are residing in the same city or municipality, there should be a prior attempt to conciliate in the barangay level under the rules, the barangay of the defendant. It is a condition precedent. It only applies to suits between natural persons. For purposes of the Barangay Law. The word RESIDES refers to actual or physical residence, not domicile. ( Graces vs. CA ) PRIMARY PURPOSE: To provide the conciliation mechanism, as an alternative to litigations in dispute settlement, to member of

2.

In both cases, the parties may agree to submit their differences for amicable settlement by an appropriate Lupon. Conciliation proceeding at the barangay level are pre-condition to filing an action in court or a government office. Non-compliance with this requisite may result in the dismissal of the complaint.

PARTIES MAY FOREGO THE BARANGAY CONCILIATION PROCESS AND GO DIRECTLY TO THE COURT WHEN: 1. The accused is under detention; 2. Habeas Corpus proceeding are called for. 3. Actions are accompanied by provisional remedies such a preliminary injunction, attachment, delivery of personal property, etc.

4. Legal action is barred by the Statute of Limitations.

EXCEPTIONS: 1. When the proposed intervenor is an indispensable party; 2. When the intervenor is a party to a class suit.

CASE: The parties failed to agree before the barangay captain. With that, the baranagy captain issued a certificate to file action. So the case was filed in the RTC. That was questioned. It was not referred to the Lupon. Therefore, it was premature, citing Section 410-d of the Local Government Code. ANS: The SC cited a new section in the LGC which is section 412 which seems to give the barangay captain the authority to issue a certificate without necessarily referring anymore to the Lupon. Although no pangkat was formed, we believe that there was substantial compliance with the law. It is noteworthy that under section 412 of the Local Government code, the confrontation before the lupon chairman or the pangkat is sufficient compliance with the pre-condition for the filing of the case in court. This is true notwithstanding the mandate of Section 410 (b) of the same law that the barangay chairman shall constitute a pangkat if he fails in his mediation efforts. Section 410(b) should be construed together with Section 412. On this score, it is significant that the barangay chairman or punong barangay is himself the chairman of the lupon under the Local Government Code. (DIU VS. CA ) So, the case of DIU has effectively set aside the ruling in Ramos vs. CA.

RULE 20 CALENDAR OF CASES URGENT CASES : 1. Habeas Corpus cases; 2. Election cases; 3. Special Civil Action cases. RULE 21 SUBPOENA Types of Subpoena: 1. Subpoena Ad Testificandum; and 2. Subpoena Duces Tecum SUBPOENA AD TESTIFICANDUM - is a process directed to a person requiring him to attend and to testify at the hearing or trial of an action, or at any investigation conducted by competent authority, of for the taking of his deposition. you are required to appear there and testify in court. SUBPOENA DUCES TECUM is the process directed to a person where it requires him to bring with him any books, documents or other things under his control. we are more interested in his documents, which are in his custody. WHO ARE AUTHORIZED TO ISSUE SUBPOENAS? 1. The court before whom the witness is required to attend; 2. The court of the place where deposition is to be taken; 3. The officer or body authorized by law ( investigations) 4. any justice of the Supreme Court or Court of Appeals in case pending within the Philippines. WHEN AUTHORITY OF THE COURT IS NEEDED 1. Subpoena addressed to a prisoner zsentenced to death, reclusion perpetua, or life imprisonment. 2. That addressed to one confined in any penal institution. GROUNDS FOR QUASHING A SUBPOENA: 1. IT IS UNREASONABLE OR OPPRESSIVE;

RULE 19 INTERVENTION Grounds for intervention ( the intervenors) 1. Has a legal interest in the matter in litigation; 2. Has a legal interest in the success of either parties; 3. Has a legal interest against both; 4. Is so situated as to be adversely affected by a distribution or other disposition of the property in the custody of the court or an officer thereof. Factors to be considered in intervention: 1. Whether or not it will unduly delay or prejudice the adjudication of the rights of the original parties; and 2. whether or not the intervenors right may be fully protected in a separate proceeding. Intervention ( before rendition of judgment ) GENERAL RULE : A matter of judicial discretion.

2. The relevancy of the books, documents or things does not appear; 3. The person in whose behalf the subpoena is issued failed to advance the reasonable cost of the production thereof. EFFECT OF SUBPOENA: FAILURE TO APPEAR DESPITE

2. Voluntary Appearance 3. Improper service but came to know it. RULE 23 DEPOSITIONS PENDING ACTION GR: objections or defenses not pleaded in the motion to dismiss or in an answer are generally waived no such thing as surprised defense because. Defenses not raised are deemed waived. Principle: Lay your cards on the table BUT, the rules even say that evidentiary matters should not be alleged in the pleading but is only proved in the trial Q: If you want to avoid any surprise, is there a way of knowing then? A: Yes. Remedy is to apply the modes of discovery. Q: Distinguish Bill of Particulars from Modes of Discover? A: Bill of Particulars is Rule 12, when you compel the party to clarify vague statements of ultimate facts, but it is not an instrument to compel the other party to reveal evidentiary facts. The Modes of Discovery are intended to compel the other party to reveal his evidence and evidentiary facts. 5 Modes of Discovery: (devises which are intended to compel the other party to reveal his evidences before the trial) 1. 2. 3. 4. Depositions Written interrogatories to parties request for admission of adverse parties production or inspection of documents and things 5. physical and mental examination of persons 1 mode 2 types of deposition: 1. deposition pending action (Rule 23) 2. deposition before action or pending appeal(Rule 24)
st

1. Warrant of arrest issued against a recalcitrant witness 2. He will be declared in Contempt of Court. EXCEPTIONS: Persons residing 100km away from the place where he is to testify Detention prisonerpermission of the court. without the

SUMMONS directed to a defendant in civil case. informs the defendant that a case has been filed against him and that he is directed to answer within a prescribed period failure to file an answer by the defendant as required by the summons will be a ground to declare him in default. can be anywhere Philippines enforced in the

SUBPOENA Directed to a witness directs a witness to testify during the trial or to bring documents needed in the case.

failure to appear in court will be a ground for the issuance of a warrant of arrest or declaration of contempt of court. cannot be enforced outside the 100km limit

RULE 22 COMPUTATION OF TIME

IN COMPUTING THE TIME The first day is excluded and the last day included. If date falls on a Sunday or a holidaynext working day The day of the act that caused the interruption shall be excluded in the computation of the period.

DEPOSITION: wirtten testimony of a witness given in the course of a judicial proceeding, in advance of the trial or hearing, upon oral examination or in response to written interrogatories, and where an opportunity is givebn for cross-examination Section 1 Q: When there is a pending action, is it necessary that leave of court or permission should be sought for deposition to be allowed? A: It depends

IMPROPER SERVICE OF SUMMONS- DISMISS THE CASE EXCEPTIONS: 1. Waiver on the part of the plaintiff

1. If the defendant has already filed an answer and therefore jurisdiction over the person of defendant has been obtained, leave of court is not required. All you have to do is send the questions to the other party 2. If no answer, where the court has not yet acquired jurisdiction over the person of the defendant, it requires a motion. *You can take the testimony of ant person whether a party or not at the instance of any party *2 modes : oral examination and written interrogatories Dasmarinas Garments vs Reyes HELD: Depositions may be taken at any time after the institution of any action, whenever necessary or convenient. There is no rule that limits deposition-taking only to the period of pre-trial or before it. *It is even allowed as part of the execution where the trial is already terminated

(b) *it is the deposition of the party himself; it can be used for any purpose Section 5 *substitution of parties does not affect the right to use depositions previously taken *depositions taken in the dismissed case will still apply if ever there is a new case

Section 6 Q: Can you object to the evidence which is being offered during the deposition taking? A: Yes. However, the deposition officer cannot rule but the objection is recorded. It is the judge who will rule on the objection later during the trial

Section 2 *deponent may be examined regarding any matter whether related to the claim or defense of any other party *mode of discovery is a fishing expedition in the hope that you will discover something in the course of a questioning

Section 8 GR: by simply taking your deposition, it will not make you as my witness. But once I offer your deposition in court, you are now my witness, especially if you are dead or when you are residing more that 100 kms E: 1 2 when I am offering your deposition to contradict or impeach you When you offer the deposition of your opponent, you are not making hi8m your witness.

Limitations in deposition taking: 1. Matter inquired into is not privileged either under the rules on evidence or special law 2. The matter inquired into is relevant to the subject of the pending action 3. The court may issue orders to protect the parties and its deponents under S16 or 18. Section 4 Deposition may be used: 1. at the trial 2. upon a hearing of a motion 3. upon a hearing of interlocutory proceeding Deposition may be used against: 1. against any party who was present 2. against a party who was represented at the taking of the deposition 3. against a party who did not appear or represented but was duly notified of the scheduled deposition taking (a) *deposition can only be used for the purpose of contradiction or impeaching the testimony of deponent as a witness. It does not exempt the witness from testifying in court. It is only a means of knowing what the witness will testify *If he deviates from the deposition, you can impeach him using the deposition taken under oath earlier

Section 9 *you can always rebut the truth of what the other said in his deposition

Section 11 *SC Circular: If the judge will authorize the taking of deposition abroad, because this time leave of court is required, you course it to the DFA. The parties are not supposed to communicate directly to the Phil. embassy

Section 12 LETTERS ROGATORY is an instrument whereby the foreign court is informed of the pendency of the case and the name of the foreign witnesses, and is requested to cause their depositions to be taken in due course of law Dasmarinas Garments vs Reyes HELD: You must allege that the commission has been returned unexecuted before resorting to letters rogatory. What matters is that the deposition is taken before a Philippine official noting by authority of the Phil. DFA and in virtue of a commission duly issued by the Philippine court even no diplomatic relation with the other country.

Section 15 Note: before deposition is taken, there should be notice to the adverse party

Section 4 *If the petition is granted, the court will now allow the deposition of these people to be taken and they are taken simply by following rule 23. Section 6 Q: How do you use the perpetuation of testimony? A: The same uses of an ordinary deposition for impeachment etc

Section 16 Q: What orders may court issue for the protection of parties and deponents; when may orders be issued; what court has power to issue the orders? A: 1. That the deposition shall not be taken 2. That it may be taken only at some designated place other that that stated in the notice 3. That it may be taken only on written interrogatories 4. That certain matters shall not be inquired into 5. That the scope of the examination shall be held with no one present except the parties to the action and their officers nor counsel 6. That after being sealed the deposition shall be opened only by order of the court 7. That secret processes, developments, or research need not be disclosed 8. That the parties shall simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court 9. The court may make any other order which justice request to protect the party or witness from annoyance, embarrassment, or oppression.

RULE 25 INTERROGATORIES TO PARTIES DEPOSITION UPON WRITTEN INTERROGATORIES (R23) the deposition is taken before deposition officer; questions are prepared beforehand. They are submitted to the deposition officer who will ask the deponent the questions and he will record the answers; the deposition of any person may be taken, whether he is a party or not, may be taken; INTERROGATORIES TO PARTIES (R25)

there is officer

no

deposition

the questioning is direct. Plaintiff questions defendant, defendant questions the plaintiff. There is no third person who will intervene. applies to parties only. You can send interrogatories only to parties. You cannot ask question to stranger.

Section 17 *must be under oath *answers to depositions not objected to cannot be objected to in court during the trial, unless the objection is based on a new ground which only come up after the deposition

Section 1 Section 25 *questions are prepared already in advance and that is direct interrogatories *practically, there is no personal confrontation of the witness RULE 24 DEPOSITIONS BEFORE ACTION OR PENDING APPEAL *If an answer has already been served, leave of court is not necessary. Section 2 *You are mandated by law to answer fully in writing my questions and signed and sworn by you. GR: 15 days to answer interrogatories. Section 5 2 types of deposition: 1. Deposition Pending Action 2. Deposition Before Action or Pending Appeal Section 1 *File it in the court of the place of the residence of any expected adverse party bacause there is still no case Q: What kind of questions can you ask under R25 to your opponent? A: 1. anything that is related to the claim or defense provided it is relevant and 2. it is not privileged Section 6 (cross reference with R132 S10 leading and misleading questions)

*Under this section, if I intend during the trial to call him to the witness stand, I am obliged to send him ahead written interrogatories. If I do not send, I do not have the right to call him to the witness stand * this compels the lawyers to avail of the modes of discovery RULE 26 ADMISSION BY ADVERSE PARTY *also known as request for admission *You are requiring the opposing party to admit the truth or authenticity of certain documents, documents which are not actionable

person mentioned in the law and upon no other in order for the notice to be valid PSCFC Financing Corp vs Court of Appeals HELD: A client can always act through the lawyer and hi is bound by the actuations of his lawyer

Principles: 1. a request must be directed to the party whose admission is sought. Service of request to any other person is not a valid request at all. 2. A request must always be directed to the party whose admission is sought, but the latter may delegated to his lawyer the right to answer the request. Such is valid so long as there is a valid authorization. RULE 27 PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS Section 1 Requisites of production or inspection of documents or things: 1. A motion (leave of court) must be filed by a party showing good caused therefore 2. Notice of the motion must be given to all other parties 3. The motion must sufficiently describe the document or things sought to be produced or inspected 4. The document or thing sought to be produced or inspected must constitute or contain evidence material to the pending action 5. The document or thing sought to be produced or inspected must not be privileged 6. The document or thing sought to be produced or inspected must be in the possession of the adverse party or, at least, under his control

Section 1 *You request the other party to admit the genuiness of any material and relevant document described in and exhibited with the request or of the truth in the request *apply this at anytime after issues have been joined *leave of court is unnecessary

Section 2 Effect of failure to answer the request: deemed to have admitter all the things that is asked of you to admit

Po vs Court of Appeals HELD: No need for another denial in the request for admission. When the matter is already effectively denied in the pleading, then there is no need to ask it all over again. What has already been denied is denied and therefore you cannot say that for failure to deny it s already deemed admitted.

Section 4 *Party admitting is allowed to withdraw, change or amend his previous admissions provided it is with leave of court

SUBPOENA DUCES TECUM UNDER R21

Section 5 *mandatory mode of discovery GR: matters which are objectionable should be pushed by the party concerned or affected E: Unless otherwise allowed by the court for good cause and to prevent a failure of justice is a means of compelling production of evidence which must be brought to court; may be directed to any person, whether a party or not; may be issued upon an ex parte application

PRODUCTION OR INSPECTION OF DOCUMENT OR THINGS (R27) is essentially a mode of discovery

is limited to parties in the action,

Breboneria vs Court of Appeals HELD: In a request for admission, since we are questioning the party, we should address it to him, and not to the lawyer. Service must be mad directly upon the

The order under R27 is issued only upon motion with notice to the adverse party,

RULE 28 PHYSICAL AND MENTAL EXAMINATION OF PERSONS Section 2 Rue 28 applies in all actions where the mental or physical condition of a party is in question or controversy a. annulment of marriage on the ground of psychological incapacity b. annulment of marriage on the ground of impotency c. annulment of contract on the ground of insanity at the time of execution d. physical disability due to quasi delicts Requisites of physical and mental examination of persons under R28: 1. The physical or mental condition must be a subject of controversy of the action; 2. A motion showing good cause must be filed; and 3. Notice of the motion must be given to the party to be examined and to all other parties

the period preceding it, thus reducing the possibility, of surprise. Section 1 *If a party or deponent refuses to answer a question on oral examination or written interrogatories under R25, the remedy is to go to court and get an order to compel him to answer. And he can be held liable for the reasonable expenses incurred in obtaining the order including attorneys fees. Section 5 *If a party is served with interrogatories and he refuses to answer under R25, he can be penalized with the ultimate penalty of dismissal of the case or judgment by default. Thus, the ultimate effect is that, a party who refuses to cooperate may lose the case ultimately. *R29 allows a default judgment even if you filed an answer for failure to comply with the modes of discover Insular Life vs Court of Appeals HELD: While it is true that there are sanctions allowed by law in cases of refusal to comply with the modes of discovery, the same is discretionary. Let the court decide whether justice will be served by going to trial or not While the modes of discovery are intended to attain the resolution of litigations with great expediency, they are not contemplated, however, to be ultimate causes of injustice. Courts are still given the leeway of whether or not to apply the ultimate sanctions. Fortune Corporation vs Court of Appeals HELD: the various methods of discovery as provided for in the Rules are clearly intended to be cumulative, as opposed to alternative or mutually exclusive. *modes of discovery can be used to really squeeze everything out of your opponent.

Section 4 Depositions pending action, no answer filed yet - pending action, answer filed already

required not required required required not required not required Required Required

- before action or pending appeal Interrogatories no answer filed yet - answer filed already Request for admission

Production or Inspection of Docs or Things Physical and mental examination of persons

RULE 29 REFUSAL TO COMPLY WITH MODES OF DISCOVERY Republic vs Sandiganbayan HELD: the various modes or instruments of discovery are meant to serve as a device, along with the pretrial hearing, to narrow and clarify the basic issues between the parties and as a device for ascertaining the facts relative to those issues. Deposition-discovery rules are to be accorded a broad and liberal treatment. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. The depositiondiscovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to

Instances when a defendant shall be considered in default even if such defendant has already filed an answer: 1. Failure to appear at the pre-trial conference (R18) 2. Failure to file a pre-trial brief; and 3. Failure to cooperate in the mode of discovery R29

RULE 30 TRIAL Section 1

*It is the duty of the clerk of court to send notices to the parties about the date of the trial in such manner as shall insure his receipt of that notice at least 5 days before such date. *It is mandatory that the notice should reach the party or its lawyer at least 5 days before such date. Trial an examination before a competent tribunal of the facts or law put in issue in a case, for the purpose of determining such issue

Sec. 8 *This is mentioned in Rule 18, Sec. 2 (h) that discusses the possibility of suspension of the proceedings The possible good legal grounds for the parties to ask for suspension of the hearing are (Article 2030 Civil Code): 1) If willingness to discuss a possible compromise is expressed by one or both parties; or 2) If it appears that one of the parties before the commencement of the action, offered to discuss a possible compromise but the other party refused the offer * If the party cannot agree to settle, the procedure is, let the trial go on. (GOLDLOOP PROPERTIES INC. vs. CA) * MATTERS THAT CANNOT BE THE SUBJECT OF COMPROMISE; (ARTICLE 2035) 1) civil status of a person; 2) validity of marriage or a legal separation; 3) any ground for legal separation; 4) future support; 5) jurisdiction of courts; 6) future legitime; 7) habeas corpus

Section 2 GR: No party shall be allowed a postponement of more that 1 month per postponement but a maximum of 3 postponements. E: when authorized in writing by the court administrator

Section 3 Republic vs. Sandiganbayan HELD: A motion for postponement should not be filed at the last hour and that judges are cautioned against granting improvident postponements Tiomico vs Court of Appeals HELD: Motions for postponement are generally frowned upon by courts if there is evidence of bad faith, malice or inexcusable negligence on the part to the movant. Client is bound by his counsels conduct, negligence and mistakes in handling the case

Section 4 *A motion for postponement which is not verified upon the ground of illness of a party or counsel without a medical certificate should be granted if it appears that the claim of the movant is meritorious. *Motion for postponement is always addressed to the sound discretion of the court.

Section 5 Note: the trial shall be limited to the issues stated in the pre-trial order

Sec. 6 *If the parties agree in writing upon the facts involved in the litigation and they will submit the agreed facts or the case for decision. This is what we call JUDGMENT ON AGREED STATEMENT OF FACTS OR JUDGMENT BASED ON STIPULATION OF FACTS.