125550000 Civil Procedure Reviewer

8/13/2019 125550000 Civil Procedure Reviewer

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ii. #f jurisdiction is the power of the court% venue refers to locality or

place

iii. Can be changed by will of partiesiv. 3enue depends on

1. nature of the action

a. seen in the allegation via prime ovjective test". residence

). stipulation

4. lawb. 5eal Actions

i. #nvolves title or possession of real property

ii. -ried in the court where the property is located

iii. 6orcible entry and unlawful detainer are tried in '-C of suchlocation

c. Personal actions

i. All other actions not involving title or possession of property can

be tried in the 578#07*C7 of the plaintiff or defendant or for anon&resident defendant% at the election of the plaintiff

d. *on&residents $i. 'ust involve status or 5P property

ii. -ried in the plaintiff9s residence or where the property is

e. Agreement on venuei. 'a:es these rules inapplicable

1. can be permissive or mandatory

a. test is if there are e2clusionary terms ie ;must

a. court may not acuire jurisdiction and may dismiss

the caseb. unless there be absence of intent to defraud

". 5ules

a. 'angaspi $

b. 'anchester $c. 8un insurance

4. Procedure in trial Courts

a. Applicable also in '-C% e2cepti. When redefined by law

ii. #n summary cases

b. P7A0#*@8i. 0efinition $ pleadings are the written statements of the respective

claims and defenses of the parties submitted to court for judgment

ii. inds

1. Complaint $ alleges the plaintiff9s cause of action


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". Answer $ alleges the defendant9s cause of action

a. *egative defense $ specific denial of material facts

essential to cause of actionb. Affirmative defense $ allegation of new matters

i. While hypothetically admitiing the material

allegationsii. 7g> fraud% statute of limitations% release%

payment% illegality% statute of frauds%

estoppel% former recovery% discharge). Counterclaim $ any claim which a defending party may

have against an opposing party

a. *ature> a complaint against the plaintiff

b. 'ay be set up before judgmentc. -ypes

i. Compulsory counterclaim

1. cogni(able by regular courts of

justice". arises out of or is connected with

transaction). no need for )p of whom court cannot

acuire juris

4. must be withing court9s jurisa. e2cept 5-C> :ahit e2cessive

amount

B. must have matured before the

answer% else permissiveii. Permissive Couterclaim

1. not connected with subject matter of

the claimd. -ests

i. Are the issues of fact and law raised by the

claim and counterclaim largely the same?ii. Would res judicata bar a subseuent suit?

iii. Are there same pieces of evidence to support

plaintiff9s claim and defendant9s

counterclaimiv. #s there a logical connection between the

claim and counterclaim?

e. Purpose> no to multiplicity of suits4. Cross claim $ a claim by one party against a co&party that

arose out of the transaction which is the subject mater of

the complaint or counterclaimB. counter&counterclaims and counter cross claims

. reply $ a pleading that denies by way of defense and

thereby ma:es issue as to new matters


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D. third party complaint $ a claim that the defendant who in

leave of court files against a )p not party to the action for

contribution% indemnity or subrogation in respect ofopponent9s claim

E. complaint in intervention

iii. 6ormal 5euirements of a Pleading1. Caption $ includes

a. *ame of the court

b. -itle of the action $ indicates the names of theparties and respective participation

c. 0oc:et number

". =ody $ includes> the designation% allegations% reliefs and

taesa. Paragraphs

b. ,eadings

c. 5elief $ includes a general prayer

d. 0ate). signature and address

a. signature means he has read the pleadingF with hoodgrounds to support it and not interposed for delay

4. verification

a. @5> not reuiredi. 72ception> when reuired by law

b. 3erifies that the affiant has red the pleading and are

true and correct of his :nowledge or based on

authentic recordc. Absence of such is merely formal defect

i. #e forcible entry proceedings is not void

d. Certification against forum shopping-he plaintiff or principal party shall certify under oath in the complaint or other initiatory pleading asserting aclaim for relief% or in a sworn certification anne2ed thereto and simultaneously filed therewith> a! that he has

not theretofore commenced any action or filed any claim involving the same issues in any court% tribunal or

uasi&judicial agency and% to the best of his :nowledge% no such other action or claim is pending thereinF b! if

there is such other pending action or claim% a complete statement of the present status thereofF and c! if he

should thereafter learn that the same or similar action or claim has been filed or is pending% he shall report thatfact within five B! days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been

filed.

6ailure to comply with the foregoing reuirements shall not be curable by mere amendment of the complaint or

other initiatory pleading but shall be cause for the dismissal of the case without prejudice% unless otherwise

provided% upon motion and after hearing. -he submission of a false certification or non&compliance with any of

the underta:ings therein shall constitute indirect contempt of court% without prejudice to the correspondingadministrative and criminal actions. #f the acts of the party or his counsel clearly constitute willful and

deliberate forum shopping% the same shall be ground for summary dismissal with prejudice and shall constitutedirect contempt% as well as a cause for administrative sanctions.

i. 6orum 8hopping $ institution of two ormore action grounded on the same cause to

see: remedies which had already been

solicited in the other courtii. -ests


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1. same transactions

a. identical cause of action

b. same issuesc. same subject matter

". same facts

). same circumstances4. or>

a. same parties

b. same cause of actionsc. same reliefs sought

iv. 8ubstantial 5euirements of a Pleading

1. Gltimate 6acts $ on which the party bases his claim or

defensea. 'ust be plain% concise and direct

b. 6ree from evidentiary facts

c. 0efinition $ constitutes the plaintiffs cause of

actionFd. -est> it cannot be stric:en out without leabing the

cause of actione. 7videntiary facts $ facts necessary for the

determination of G6 or the premises to have the

conclusions or G6f. 0ifferent from conclusions of law

". condition precedent

). capacity

4. fraud% mista:e or condition of the mindB. judgment

. actionable documents $ written instrument upon which the

action is basedD. -ests of 8ufficiency

a. Complaints

i. Can judgment be rendered if admitted?ii. Always rec:on against grounds for dismissal

iii. #s bill of particulars available

b. 5esponsive Pleadings

i. *ot susceptible for summary judgmentii. *ot a confession

iii. 'ust tender an issue

iv. 'ust deny material allegation% else%admitted

1. or ma:e specific denials $ not just

general denial r mere ignoreance ofthe facts includes how he became

ignorant of the facts!

". some things are not deemed admitted

when not denied li:e conclusions


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of law% default% annulment% legal

separation

v. 0efenses and objections must be pleaded%else waived

c. Alternative Causes of Action $ may be pleaded

even if inconsistent with each other but must beconsistent in itself

i. 7lection of remedies $ choice of remedies

that preclude others to prevent doublerecovery

B. 7ffect of failure to plead

a. 0eemed Waived

i. 72cept> prescription etcb. Cross&claim and compulsory counterclaim are barred

c. 076AG-

i. When?

1. court has juris". defending party fails to answer within time

). with motionii. ,ow?

1. motion only

". notice with proof of failureiii. Conseuence

1. declaration of order by default> party in default is entitled to

notice of subseuent proceeding but not to ta:e part in the

triala. or> oss of standing in court $ cannot appear%

produce evidence etc

i. not a waiver of rights". declaration of judgment by default> court can render

judgment based on plaintiff9s relief

a. unless there is a need for evidenceb. relief is limited from what is prayed for

iv. relief from order of default

1. after notice% before judgment file a motion under oath to set

aside the order". there be showing of fraud% accident% mista:e or e2cusable

negligence with meritorious defense

. Amended Pleadingsa. 0efinition> to add stri:e out or correct a mista:e> no limitations

i. -here are also formal amendments $ ie clerical error

b. Purpose> actual merits of the case be speedily determinedc. As a matter of right

i. Once as a matter of course dapat before responsive pleading!

1. if it is not a responsive pleading $ right to amend is not

affected


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a. eg> motion to dismiss% motion for summary

judgment

ii. #n case of a reply> within 1 days after servedd. =y leave of court

i. Only substantial amendments may be made only upon leave of

courtii. Gnless a delaying tactic

iii. -here must be a motion H notice to adverse party I opportunity to

be hearde. As to conform to or authori(e the presentation of evidence

i. ,appens when issues not raised by the pleadings are tried with the

consent e2press or implied! by the parties

ii. 7ffect> treated as if raised in the pleadingsiii. 'ay be made anytimeF even after judgmentF does not affect the

resolution of issue

iv. #f objected% court may still allow amendment if the action is

meritorious and the ends of substantial justice will be servedf. 7ffect of Amended Pleadings

i. #t superseded the prior pleadingii. Admissions in superseded pleading may be received as evidence

against pleader

iii. Claims and defenses in superseded pleadings are deemed waivedD. 8upplemental Pleadings

a. 0efinition $ a pleading which sets forth the events which happened since

the date of the pleading sought to be supplemented

i. -hese are material to the mature claims already allegedii. #t only supplies deficiency to the original cause of action not

barred by statute of limitations!

1. if the issue matured A6-75 the orginal pleading% cannot beaverred in the supplemental pleading

". not allowed also if there is supplemental pleading

b. 7ffecti. 1 days after notice of admission% adverse party may plead thereto

ii. #f unanswered% a ground for default

c. #t is not a matter of right

E. 5esponsive Pleadingsa. 0efinition> a formal answer to the declaration of the other part

b. 5eglementary periods

i. *ot interrupted by bill of particulars and motion to dismiss1. =ill of Particulars $ a definite statement on matters not

averred with sufficient definiteness needed to ma:e in

responsive pleading". ie conclusions of law% indefinite denials etc

). effect for non compliance $ stri:ing out of allegation

ii. Answers

1. -o the complaint$ 1Bd after service of summons


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a. if foreign juridical entity $ )d

". -o the amended complaint

a. 'atter of right $ 1Bd after service of copyb. *ot a mtter of right $ 1d

). to counterclaim or crossclaims $ 1d after service

a. when he failed to set this up through oversight%inadvertence or e2cusable neglect% he% may by leave

of court set this up by amendment before judgment

4. to supplemental complaint $ 1diii. reply $ 1d after pleading

J. 6iling and 8ervice of +udicial Papers

a. 0efinitions

i. 6iling $ the act of presenting the pleading to the cler: of courtii. 8ervice $ act of providing a party with the copy of the pleading

paper

1. given to counsel unless otherwise ordered by court

". improper service is ineffectual and does not bind the partyb. 'anner $

i. Personally1. complete upon actual delivery

". proof> e2istence of the records in the case

). stamped or written ac:nowledgment in the CC4. proof> written admission of receiver% official return

affidavit of sender

ii. 5egistered mail

1. #n a sealed envelope with instructions to 5-8 after 1dundelivered

a. Gpon actual receipt of the addressee

b. B days after postmaster9s notice". #f none% use ordinary mail

a. After 1days of mailing

b. Proof> affidavit of person mailingiii. substituted service

1. if>

a. personal or registered mail is nKa

i. e2cept for judgments% final orders andresolutions

1. only personal and mailing service

allowed". service by publication is allowed if

summons are served by publication

b. office and place of residence of party or counsel isun:nown

". must have proof of failure

). completed at time of delivery to cler: of court

1. 8ummons


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a. Who?

i. #ssued by the cler: of courtF directed to the defendantF served by

sheriffK deputyK court authori(ed personii. 0one after>

1. 6iling of complaint

". Payment of doc:et feesb. Purpose

i. -o acuire jurisdiction over the person

ii. Plus> to give notice to the defendant that there is an acion againsthim oppty to be heardK due process!

iii. 6or the =7*76#- of the defendant

c. *ot needed when

i. -here is voluntary appearance1. motion to dismissK e2tension of timeK =ill of particulars

d. -ypes of 8ervice

i. Personal 8ervice

1. personal service is handing the summon to the defendant inperson and if the person refuses to sign% by tendering it to

himii. 8ubstituted 8ervice

1. if> for justifiable causes H defendant cannot be served

within a reasonable time". done through>

a. leaving copies of the summons at the defendants

residence with a person of suitable age and

discretion residing thereinb. leaving copies at the person9s office or regular place

of business with competent person in charge thereof

). remedy> actual receiptiii. 72traterritorial service

1. done to> non residents and not found in 5P or even to those

residents but temporarily out of the country". personal status and property is affected either by interest

or attachment!

). through> OC

a. personal serviceb. publication

c. other manner

d. / days of answering time4. but judgment is limited to status and property

B. effect> since not in personam% there is still jurisdictionF only

due process is affectede. 5ules

i. Over Actions

1. #n personam resident! $ P758O*A servce is reuired


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a. personal service is handing the summon to the

defendant in person and if the person refuses to

sign% by tendering it to himb. if none>

i. judgment is null and void

1. unless there is a waivera. failure to raise the uestion of

jurisdiction at the 1st

opportunity or seasonablyraised in ;over remK uasi in

rem< $ one can raise this

anytime!

ii. the reglementary periods do not runc. remedy> certiorari

d. if not available $ substituted service

e. if temporarily out of the country

i. substituted serviceii. service outside the country with 7A37 O6

COG5-iii. service by pub wit OC

iv. other manners said by the court

". #n personal non resident!a. Cannot be found in 5PF does not submit to juris

b. -hrough>

i. Personal service of summons in 5P

ii. *ot through publication nor substitutedsummons

c. #f failed> no jurisdiction

i. 72ception> if there is an attorney in factresiding here

). #n remK uasi in rem residents! $ same

4. in remK uasi in rem non residents! $ leave of courta. service in 5P

b. publication

ii. Over types of people

1. without +P $ done to anyone% or person in charge or placeof business

". prisoners $ to the officer managing the institution or the

;deputi(ed special sheriff

4. domestic +P private! $ only to the president% managing

partner% @'% corp sec% treasurer or in&house counselB. foreign +P private! $ to resident agents% government

officials designated 87C! or on any officers or agents

within the 5P

a. but must have transacted business in the 5P


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i. /must be alleged in the complaint

b. :ey> loo: at the circumstances of the case if there is

intent to do business herei. did it further the corp9s purposes?

c. /note $ they can institute an isolated action over an

isolated transactiond. =y service of summons

i. Principle of processual presumption $

identity of laws in different countries. pub corp $ 8olicitor @eneralF e2ecutive head and other

court directed officers

D. persons whose identity or whereabouts are un:nown or

un:nown owners $ service is made by 7A37 O6 COG5-upon publication in newspaper

f. Contents

i. *ame of the court and parties

ii. 0irection to answer in timeiii. *otice that unless answered% plaintiff will ta:e judgment by default

g. 57-G5*i. @iven bac: to cler: by server aftr service has been completed

1. within B days

". through personally or by registered mailh. A#A8 8G''O*8

i. #f the summons has not been served or lost

1. server must render the return to plaintiff9s counsel Bd with

reasons!". in such% cler: may issue alias summons

i. eave of Court $ made by motion in writing to effect service

j. Proof of 8ervice $:. 3oluntary appearance $ euivalent to service of simmons

i. 72cept if appearance is based on o+11. 0ismissal of Actions

a. 5ule 1 8ec 1! $ made before the filing of an answer to the complaint.

i. 72ceptions> even after trial when evidence discovered only during the

trial

ii. -he grounds must be really stipulated

1. e2cept> jurisdiction% res judicata and statute of limitations% and

forum shoppingb. @rounds>

i. *o jurisdiction over the person of the defending partyii. *o jurisdiction over the subject matter

iii. 3enue is improperly laid

iv. *o legal capacity

v. Another action is pending of the same parties and the same cause

1. same parties

". same rights and reliefs

). same causes of action the identity should be that judgment

thereon will amount to res judicata


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4. /lac: of :nowledge is immaterial

B. test on which to dismiss

a. priority in time rule

b. whether the action to be dismissed was merely to

preempt the later action or to anticipate its filingc. more appropriate action rule

d. interest of justice rulei. nature of controversy

ii. comparative accessibility if the parties

iii. other similar factors

vi. =arred by a prior judgment or statute of limitations

1. does not run if the contract is void ab initio

vii. *o cause of action

1. only material and relevant facts% not>

a. untrue facts upon judicial notice

b. legally impossible facts

c. inadmissible facts in evidence

d. unfounded facts

viii. -he demand has been paid% waived% abandoned or e2tinguished1. e2tinguishment of obligations> payment% loss% condonation%

confusion% compensation% novation

i2. Gnenforceable under statue of frauds

2. Condition precedent has not been complied withc. 7ffect of denial of motion

i. 'ovant shall file answer within balance of the period% or B days

ii. #f amended% after service

iii. 5emedies

1. @5> motion to dismiss in interlocutory and cannot be subject to

certiorari

a. 72ception> gadlej

". -he loser can file an answer and interpose by defense thenelevate to appeal

d. 7ffect of dismissal

i. -he following are barred but can be appealed!

1. statute of limitations

". statute of frauds

). performance of obligationii. @5> barred if dismissal on merits

1. the ff are not dismissal on merits> premature actions% lis pendens

iii. dismissal is without prejudice to prosecution of a separate action

e. Other effects of the groundsi. #f not on motion% can be raised as affirmative defenses

1". Pre&-rial $ method to directly address and discuss issuesa. When>

i. After last pleading has been served and filed

ii. Plaintiff moves e2 parte the case for pretrial

b. Pre trial is mandatory

i. "ndpre trial is unnecessaryii. both client and counsel must appear

1. unless there is valid absence


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". or with a representative who can enter into amicable settlement%

A05 and stipulations

a. if made without authority remedy is 5A-#6#CA-#O*

). else% ground for dismissal if plaintiff does not appear

4. else% ground for e2 parte if counsel does not appeara. judgment e2 parte is different from judgment by default

i. in the latter award should not e2ceed the amountor be different from what is prayed for

b. remedy> claim na lang that the defendant is non&suited to

present evidence

i. remedy of the non&suited> to appeal since the

dismissal is on merits

c. Purpose

i. Amicable settlement or submission to A05

ii. 8implification of issues

iii. *ecessity of amendments

iv. 8tipulations of fact

v. imiting the L of witnesses

vi. Advisability of preliminary reference of issues to a commissionervii. Propriety of summary judgment or dismissal of action

viii. Advisability or necessity of suspending proceedings

i2. Others

d. Pre&trial briefi. 8tatement of willingness to enter to A8 and A05

ii. 8ummary of facts and proposed stipulation

iii. #ssues to be tried and solved

iv. 0ocuments and e2hibits and their purpose

v. -hat they availed of discovery procedures or referral to commissioners

vi. Witnesses and their testimonies

vii. /effect of failure to file is the same as absence

e. 7ffectsi. @5> trial is limited to unresolved issues

1. 72ceptions>

a. Prescription

b. #ssues that are impliedly included therein

c. #ssues not objected or tried with e2press or implied

consent of the partiesd. Amendments of pleading to conform to evidence

1. Discovery

a. 0efinition> compulsory process wherein litigants are forced by court rules or

orders to disgorge private information to adverse partyi. Can be compelled even prior trial

ii. =ut this is not mandatory $ but there are sanctions

1. if not availed of% the recourse is to have pre&trial

b. Purpose>

i. -o obtain :nowledge of material facts within the :nowledge of the

adverse party or third parties

ii. Obtain admissions from adverse parties

iii. #nspect relevant documents% objects and properties


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iv. 7ffectively shorten the period of liigation and speed up adjudication

v. -he defense of ;fishing e2pedition< is answered for

vi. -o eliminate unessential issues and have the parties lay the cards on the

table

vii. 'eant to serve1. a device% alng with pre&trial to narrow and clarify basic issues

". a device for ascertaining facts relative to issuesc. What can be 0iscovered

i. @5> All

1. ie boo:s% documents% tangible things% facts% persons

ii. 7videntiary mattersM

1. before% you can only ascertain through ultimate facts which are

the barest outline of the claims

". bill of material9s office is limited to ma:ing the facts more

particular but not on evidenciary facts

). hence% discovery still applies even if =OP is denied

iii. 'odes of discovery see below!

1. cumulative in nature $ if you availed of one% such is not a bar to

another". Procedure

a. As: for leave of court

i. 72cept for deposition% interrogatories and

admissions% the @5 is to have no OC and nocourt intervention

b. 8end notice of deposition

c. 5euest for subpoena

i. -here is a need for proof of service of notice

ii. -here must be an order from court to issue

subpoena duces tecum

d. imitations

i. 'ust be relevant1. it means germane

". reason> the law contemplates e2amination% not only for use as

evidence but also to discover information

). the issue of relevancy is adjudged during the ta:in of the

deposition at the trial and not in motion% inless it plainly appears

that the evidence has no bearing.ii. 'ust not be privileged

iii. 72amination must not be conducted in bad faith or in such manner as to

annoy% embarrass or oppress

iv. 'ust not encroach against privilegesv. Other s

vi. #f there is nothing more to discover ie disclosed all evidence andwillingly entered into stipulation!

e. 'odes of 0iscovery

i. 0eposition

1. When ta:en> type 1!

a. =y leave of court

b. =efore answer has been served

c. After jurisdiction


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i. /reason> at this time wala pang answer!% issues

are not yet joined and the facts are not clear

d. At the instance of any party

". When ta:en type "!

a. Without OCi. =ut a person in prison must always be with OC

b. After the answer has been servedc. At the instance of any party

). ,ow

a. @et the testimony of a person or a written int whether a

party or not!

i. -here must be notice upon oral e2amination to

every party stating the time% place and name and

address

1. a motion can be had to enlarge or

shorten the time

b. 8ubpoena a person

c. -a:en before judge% notary% or any person authoried to

administer oaths as per stipulationi. Cannot be ta:en by a deposition officer if

1. a thdeg relative consa&affi!". an employee or attorney of one of the

parties

a. /but must be an attorney at that

time

). related to the attorney of the deponent

within same degree or employee

4. if interested in the action

If the person is in foreign country

On notice before a secretary or embassy or legation% consul general% consul% vice consul

or consular agentPersons appointed by commission or letter rogatory

& 0efinition of letters rogatory $ a formal communication from a domestic

court where an action is pending to a foreign court reuesting that the

testimony of witness threin be ta:en under the direcetion of the court

addressed to be transmitted bac: to the reuestion courtF done only if the

commission is inadeuate or ineffective

o 0istinction> procedure under contrl of foreign tribunal

o -his power is inherent to our courts and rests upon international

goodwill

o *ot available if there are other witnesses available

& 0efinition of commission $ an instrument issued by a court or tribunal to

authori(e the persons to ta:e depositions or do other act by authority of suchcourt or tribunal

o =ut foreign countries will not compel attendanceF the deponent must

voluntarly appearF if not% resort to letters rogatory

o 0istinctions> we have control of the procedure

& issued only when necessary or convenient% on application and notice% on such

terms and directions that are just and appropriate


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& done only if there is no consul et al

Any person authori(ed to administer oaths as per stipulation

eave of Court is not necessary in this case and if defendants answer has been served

-here is court intervention only during

Party moves for enlarging or shortening the timeGpon notice and good cause show> to prevent deposition ta:ing or restrict and

regulate the matter of deposition ie such matters shall not be inuired into!-o terminate the process on allegation of bad faith

d. officer to record testimony stenographed% unless

otherwise!

i. objections to the deposition officer or maner of

ta:ing it% or to evidence% or conduct! shall be

noted

ii. in lieu thereof% can have written interrogatories

iii. officer has no authority to rule on objectionsF

witness must answer unless there is an issue of

consti rights which the court must chec:

Section 29.Effect of errors and irregularities in depositions.

a!As to notice. All errors and irregularities in the notice for ta:ing a deposition are waived

unless written objection is promptly served upon the party giving the notice.

b!As to disqualification of officer. Objection to ta:ing a deposition because of disualification

of the officer before whom it is to be ta:en is waived unless made before the ta:ing of the

deposition begins or as soon thereafter as the disualification becomes :nown or could be

discovered with reasonable diligence.

c!As to competency or relevancy of evidence. Objections to the competency of witness or the

competency% relevancy% or materiality of testimony are not waived by failure to ma:e them before

or during the ta:ing of the deposition% unless the ground% of the objection is one which might havebeen obviated or removed if presented at that time.

d!As to oral examination and other particulars. 7rrors and irregularities occurring at the oral

e2amination in the manner of ta:ing the deposition in the form of the uestions or answers% in the

oath or affirmation% or in the conduct of the parties and errors of any :ind which might be

obviated% removed% or cured if promptly prosecuted% are waived unless reasonable objection

thereto is made at the ta:ing of the deposition.

e!As to form of written interrogatories. Objections to the form of written interrogatories

submitted under sections "B and " of this 5ule are waived unless served in writing upon the party

propounding them within the time allowed for serving succeeding cross or other interrogatories

and within three )! days after service of the last interrogatories authori(ed.

f!As to manner of preparation. 7rrors and irregularities in the manner in which the testimony is

transcribed or the deposition is prepared% signed% certified% sealed% indorsed% transmitted% filed% orotherwise dealt with by the officer under sections 1D% 1J% " and " of this 5ule are waived unless

a motion to suppress the deposition or some part thereof is made with reasonable promptness after

such defect is% or with due diligence might have been% ascertained. "Ja% 5"4!


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then> When the testimony is fully transcribed% the deposition shall be submitted to the witness for

e2amination and shall be read to or by him% unless such e2amination and reading are waived by

the witness and by the parties. Any changes in form or substance which the witness desires to

ma:e shall be entered upon the deposition by the officer with a statement of the reasons given by

the witness for ma:ing them. -he deposition shall then be signed by the witness% unless theparties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign.

#f the deposition is not signed by the witness% the officer shall sign it and state on the record thefact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign

together with the reason be given therefor% if any% and the deposition may then be used as fully as

though signed% unless on a motion to suppress under section "J f! of this 5ule% the court holds

that the reasons given for the refusal to sign reuire rejection of the deposition in whole or in part.

1Ja% 5"4!

Section 20. Certification% and filing by officer. -he officer shall certify on the deposition that the witness

was duly sworn to by him and that the deposition is a true record of the testimony given by the witness. ,e

shall then securely seal the deposition in an envelope indorsed with the title of the action and mar:ed

N0eposition of here insert the name of witness!N and shall promptly file it with the court in which the

action is pending or send it by registered mail to the cler: thereof for filing. "% 5"4!

Section 21.Notice of filing. -he officer ta:ing the deposition shall give prompt notice of its filing to all

the parties. "1% 5"4!

6ailure to comply is a mere defect in formF does not affect the admissibility of deposition

Section 22.Furnishing copies. Gpon payment of reasonable charges therefor% the officer shall furnish a

copy of the deposition to any party or to the deponent. ""% 5"4!

Section 23.Failure to attend of party giving notice. #f the party giving the notice of the ta:ing of a

deposition fails to attend and proceed therewith and another attends in person or by counsel pursuant to the

notice% the court may order the party giving the notice to pay such other party the amount of the reasonable

e2penses incurred by him and his counsel in so attending% including reasonable attorneys fees. ")a% 5"4!

Section 24.Failure of party giving notice to serve subpoena. #f the party giving the notice of the ta:ing of

a deposition of a witness fails to serve a subpoena upon him and the witness because of such failure does

not attend% and if another party attends in person or by counsel because he e2pects the deposition of that

witness to be ta:en% the court may order the party giving the notice to pay to such other party the amount of

the reasonable e2penses incurred by him and his counsel in so attending% including reasonable attorneys

fees. "4a% 5"4!

Section 28. Order for the protection of parties and deponents. After the service of the interrogatories and

prior to the ta:ing of the testimony of the deponent% the court in which the action is pending% on motionpromptly made by a party or a deponent% and for good cause shown% may ma:e any order specified in

sections 1B% 1 and 1E of this 5ule which is appropriate and just or an order that the deposition shall not beta:en before the officer designated in the notice or that it shall not be ta:en e2cept upon oral e2amination.

"Ea% 5"4!

8P7C#A *O-7> O* W5#--7* #*-755O@A-O5#78


18/165

Section 25.Deposition upon written interrogatoriesFservice of notice and of interrogatories. A party

desiring to ta:e the deposition of any person upon written interrogatories shall serve them upon every other

party with a notice stating the name and address of the person who is to answer them and the name or

descriptive title and address of the officer before whom the deposition is to be ta:en. Within ten 1! days

thereafter% a party so served may serve cross&interrogatories upon the party proposing to ta:e thedeposition. Within five B! days thereafter% the latter may serve re&direct interrogatories upon a party who

has served cross&interrogatories. Within three )! days after being served with re&direct interrogatories% aparty may serve recross&interrogatories upon the party proposing to ta:e the deposition. "B% 5"4!

Section 26. Officers to tae responses and prepare record. A copy of the notice and copies of all

interrogatories served shall be delivered by the party ta:ing the deposition to the officer designated in the

notice% who shall proceed promptly% in the manner provided by sections 1D% 1J and " of this 5ule% to ta:e

the testimony of the witness in response to the interrogatories and to prepare% certify% and file or mail the

deposition% attaching thereto the copy of the notice and the interrogatories received by him. "% 5"4!

& cross e2amination is still available orally if e2amination is based on written interrogatories

Section 27.Notice of filing and furnishing copies. When a deposition upon interrogatories is

filed% the officer ta:ing it shall promptly give notice thereof to all the parties% and may furnish

copies to them or to the deponent upon payment of reasonable charges therefor. "D% 5"4

7667C-8 O6 755O58 #* 07PO8#-#O*8

-he following are waived> records of e2amination% oaths% objections% submission to witnesses%

changes% signing% certification and filing by officer% officer to ta:e responses and prepare record

Section 29.Effect of errors and irregularities in depositions.

a!As to notice. All errors and irregularities in the notice for ta:ing a deposition are waived

unless written objection is promptly served upon the party giving the notice.

b!As to disqualification of officer. Objection to ta:ing a deposition because of disualification

of the officer before whom it is to be ta:en is waived unless made before the ta:ing of the

deposition begins or as soon thereafter as the disualification becomes :nown or could be

discovered with reasonable diligence.

c!As to competency or relevancy of evidence. Objections to the competency of witness or the

competency% relevancy% or materiality of testimony are not waived by failure to ma:e them before

or during the ta:ing of the deposition% unless the ground% of the objection is one which might have

been obviated or removed if presented at that time.

d!As to oral examination and other particulars. 7rrors and irregularities occurring at the orale2amination in the manner of ta:ing the deposition in the form of the uestions or answers% in the

oath or affirmation% or in the conduct of the parties and errors of any :ind which might beobviated% removed% or cured if promptly prosecuted% are waived unless reasonable objection

thereto is made at the ta:ing of the deposition.

e!As to form of written interrogatories. Objections to the form of written interrogatories

submitted under sections "B and " of this 5ule are waived unless served in writing upon the party


19/165


20/165

iii. witness is sic:% infirmed or imprisoned and

cannot attend

1. there must be a doctor9s certificate

iv. unable to procure attendance even if with

subpoenav. upon application and notice regading

e2ceptional circumstancese. to have the whole of deposition produced even if only a

part thereof is offered in evidence

i. but it must be related to such part

. *otes

a. #t is the discretion of trial court to order deposition

i. 5eason> its for the benefit of the parties

b. Objections may be made during trial or hearing

c. 7ffect of ta:ing depositions> A party shall not be deemed

to ma:e a person his own witness by ta:ing his

depositions

d. 7ffect of using deposition>i. -he deponent becomes a witness>

1. if deposition is offered without

contradiction against deponent

". not if it was used by the adverse partyii. *ot applicable to 8ec 4b!

e. Protection orders

i. Gpon

1. motion

". seasonably filed

). good cause is shown

a. good cause means substancial

reason $ a particular andspecific demonstration of facts%

not of conclusory statements is

needed

b. nie> availablibilit of deponent%

allegation of annoyance absent

proof% inconvenience4. with notice

& 0eposition shall not be ta:en

& -a:en some place else

& Only via written interrogatories& Certain matters be inuired into

& Only the parties and their counsel are present& -he sealed deposition shall be opened only by court

& *o inuire as to secret processes

& Partes to simultaneous files in the court

& -o protect party from annoyance% embarrassment or oppression

ii. #nterrogatories

1. @eneral *otes


21/165

a. -o elicit material and relevant facts% must file and serve

interoggatoriesF such are considered judicial admissions

b. int must be specific

c. if in default% he cannot propund int

d. deponent need not appear before officerF but only one setof int is allowed no party without OC% may serve more

than one set!e. written int can still be had even at rebuttal stage

". Answers $ in writing% signed and sworn and served and filed a

copy to the other party within 1B days

a. Answers cannot be made by an agent or attorney% else

null

b. 7vasive and not responsive answer may be stric:en out%

but a party has a right to ualify his answers

c. Allowed as evidence but not as self servig statements

d. -here is a duty to answer% unless objections have been

filed within 1d after service with notice!

i. @rounds

1. reuires conclusions of law% or areanswers to hypothetical uestions%

opinions% mere hearsay or is a matter not

within :nowledge of party

". frivolousii. Objection is interlocutory $ hence% remedy is to

raise uestion of admissibility on appeal from

final judgment

). effect of failure to serve written int> party cant be compelled to

give testimony in open court or give a deposition pending appeal

a. e2ceptions> allowed for good cause and for prevention of

failure of justice

iii. 5euests for admissions1. 8erved to> any party

". 8ubject of reuest>

a. @enuineness of any relevant documents

b. -ruth of any relevant matters

). At any time after issues have been joined% a party may file andserve upon any other partymay file and serve upon any other

party a written reuest for the admission by the latter of the

genuineness of any material and relevant document described in

and e2hibited with the reuest or of the truth of any material and

relevant matter of fact set forth in the reuest. Copies of the

documents shall be delivered with the reuest unless copy havealready been furnished. 1a!

a. A party need not ma:e "nddenial as contained already inanswer

b. An 56A is not intended to reiterate the allegations but

should set relevant evidentiary facts% else pointless and

useless


22/165

4. -here is implied admission when% within the period not less

than 1Bd after service% negotiable!% the party ma:es a sworn

statement unless there are objections!

a. 0enying the matters regardless if denial is false% but

liable for costs!b. Allegng he cannot admit or deny these matters with

reasonsB. Admissions are only admissions for the pending action O*F it

can withdrawn% e2pressed or implied and even amended

. 7ffect of failures to file and serve reuest for admission

a. 8uch person cannot be permitted to present evidence on

that matter

b. -his rule is intended to compel reuest for admission

c. 6ailure to answer may be a basis for summary judgment

i. ,ence% if the court doesn9t ma:e a judgment

given that a person refuses the answer% such is

gadlej because it is the law that determines the

conseuences of a party9s refusal to answer

d. #f still refues after court ordeeri. ContemptM

ii. 8ee rule "J

Rule 23 Rule 25

Who? any party or witnesspartonly

Procedure always with officer interveningNoneed

scope direct, cross, redirect and recross one set

time none 15d

iv. Production and inspection of things

1.

Section 1.!otion for production or inspectionF order. Gpon motion of any party showing good cause

therefor% the court in which an action is pending may a! order any party to produce and permit the

inspection and copying or photographing% by or on behalf of the moving party% of any designated

documents% papers% boo:s% accounts% letters% photographs% objects or tangible things% not privileged% which

constitute or contain evidence material to any matter involved in the action and which are in his possession%custody or control% or b! order any party to permit entry upon designated land or other property in his

possession or control for the purpose of inspecting% measuring% surveying% or photographing the property or

any designated relevant object or operation thereon. -he order shall specify the time% place and manner of

ma:ing the inspection and ta:ing copies and photographs% and may prescribe such terms and conditions as

are just. 1a!

". 5euisitesa. 'otion with notice to all parties showing good cause

b. *ot privileged

c. Contains evidence material to action

d. #n possession% custody and control

i. *o need for actual possession

e. 0escription with sufficient certainty

f. 8uit is pending in court


23/165

g. -he relevant and sufficient description be reasonable and

practicable

h. Available only between opposig parties

i. *o need for literal accuracy

j. @ood cause relates to the reason of producing thedocument =OP is reuesting party! and not to the

substance of the document). *otes

a. 8till applicable even if document has been produced in

court

b. 'ust specify time and place and manner and just

conditions

v. 72aminations of persons

1. 0one when the ultimate issue not just the collateral! is with

regard to mental or physical condition of a party

a. 7g> nullity based on psych incapacity

". end result> order for e2aminationM

a. 'ust havei. 'otion for good cause with notice

ii. 8pecifying the t%p%m% conditions and scope ofe2amination

b. 'ust show

i. 72amination is material and necessary

ii. Party has been reuested and refused

iii. *o serious pain or damage

iv. 8pecify the t%p%m and scope and contion

Section 3."eport of findings. #f reuested by the party e2amined% the party causing the e2amination to be

made shall deliver to him a copy of a detailed written report of the e2amining physician setting out his

findings and conclusions. After such reuest and delivery% the party causing the e2amination to be madeshall be entitled upon reuest to receive from the party e2amined a li:e report of any e2amination%

previously or thereafter made% of the same mental or physical condition. #f the party e2amined refuses to

deliver such report% the court on motion and notice may ma:e an order reuiring delivery on such terms as

are just% and if a physician fails or refuses to ma:e such a report the court may e2clude his testimony if

offered at the trial. )a!

Section 4. #aiver of privilege. =y reuesting and obtaining a report of the e2amination so ordered or by

ta:ing the deposition of the e2aminer% the party e2amined 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

e2amined or may thereafter e2amine him in respect of the same mental or physical e2amination. 4!

f. 8anctions for refusal to ma:e discoveryi. 0ismiss the action% proceeding or part thereof

ii. +udgment by default

iii. Contempt

iv. Arrest

v. Payment of fees reali(ed to compel discovery

vi. -a:ing the matters inuired as established according to claiming party


24/165

vii. 5efusal to allow disobedient party to support or oppose claims and

defenses

viii. 8tri:ing out pleadings or parts thereof

i2. 8tay of further proceedings

Section 1."efusal to answer. #f a party or other deponent refuses to answer any uestion upon orale2amination% the e2amination may be completed on other matters or adjourned as the proponent of theuestion may prefer. -he proponent may thereafter apply to the proper court of the place where the

deposition is being ta:en% for an order to compel an answer. -he same procedure may be availed of when a

party or a witness refuses to answer any interrogatory submitted under 5ules ") or "B.

#f the application is granted% the court shall reuire the refusing party or deponent to answer the uestion or

interrogatory and if it also finds that the refusal to answer was without substantial justification% it may

reuire the refusing party or deponent or the counsel advising the refusal% or both of them% to pay the

proponent the amount of the reasonable e2penses incurred in obtaining the order% including attorneys fees.

#f the application is denied and the court finds that it was filed without substantial justification% the court

may reuire the proponent or the counsel advising the filing of the application% or both of them% to pay to

the refusing party or deponent the amount of the reasonable e2penses incurred in opposing the application%

including attorneys fees. 1a!

Section 2. Contempt of court. #f a party or other witness refuses to be sworn or refuses to answer any

uestion after being directed to do so by the court of the place in which the deposition is being ta:en% the

refusal may be considered a contempt of that court. "a!

Section 3. Other consequences. #f any party or an officer or managing agent of a party refuses to obey an

order made under section 1 of this 5ule reuiring him to answer designated uestions% or an order under

5ule "D to produce any document or other thing for inspection% copying% or photographing or to permit it to

be done% or to permit entry upon land or other property or an order made under 5ule "E reuiring him to

submit to a physical or mental e2amination% the court may ma:e such orders in regard to the refusal as are

just% and among others the following>

a! An order that the matters regarding which the uestions were as:ed% or the character or

description of the thing or land% or the contents of the paper% or the physical or mental condition of

the party% or any other designated facts shall be ta:en to be established for the purposes of the

action in accordance with the claim of the party obtaining the orderF

b! An order refusing to allow the disobedient party to support or oppose designated claims or

defenses or prohibiting him from introducing in evidence designated documents or things or itemsof testimony% or from introducing evidence of physical or mental conditionF

c! An order stri:ing out pleadings or parts thereof% or staying further proceedings until the order is

obeyed% or dismissing the action or proceeding or any part thereof% or rendering a judgment by

default against the disobedient partyF and

d! #n lieu of any of the foregoing orders or in addition thereto% an order directing the arrest of any

party or agent of a party for disobeying any of such orders e2cept an order to submit to a physicalor mental e2amination. )a!

*ote> case may be even dismissed with prejudice


25/165

Section 4.Expenses on refusal to admit. #f a party after being served with a reuest under 5ule " to

admit the genuineness of any document or the truth of any matter of fact serves a sworn denial thereof and

if the party reuesting the admissions thereafter proves the genuineness of such document or the truth of

any such matter of fact% he may apply to the court for an order reuiring the other party to pay him the

reasonable e2penses incurred in ma:ing such proof% including attorneys fees. Gnless the court finds thatthere were good reasons for the denial or that admissions sought were of no substantial importance% such

order shall be issued. 4a!

Section 5.Failure of party to attend or serve answers. #f a party or an officer or managing agent of a

party wilfully fails to appear before the officer who is to ta:e his deposition% after being served with a

proper notice% or fails to serve answers to interrogatories submitted under 5ule "B after proper service of

such interrogatories% the court on motion and notice% may stri:e out all or any part of any pleading of that

party% or dismiss the action or proceeding or any part thereof% or enter a judgment by default against that

party% and in its discretion% order him to pay reasonable e2penses incurred by the other% including attorneysfees. B!

-he sanctions are>

& 8tri:ing out a all or part of pleading

& 0ismiss the action& +udgment by default

& Payment of e2penses includuing attorneys fees

/however% imposition of sanctions rests on sound discretionF there are some e2ceptions ie answers not

directed to main issues of the suitF

5emedy> ;Order to Answer< $ but not available if the whole of the interrogatory was not

answered result should be to dismiss the action or render judgment by default!

Rule Remedy Remarks

23 strike pleading or its part failed to appear and serve answer

23 dismiss the action failed to appear and serve answer 23 enter judgment by default failed to appear and serve answer

23 pay fees failed to appear and serve answer

23 apply to court to compel answer appeared but didnt answer

23 contempt appeared and ordered to answer but didnt answer

23 other modes in !ec 3 appeared and ordered to answer but didnt answer

25 strike pleading or its part failed to serve answer

25 dismiss the action failed to serve answer

25 pay fees failed to serve answer

25 apply to court to compel answer appeared but didnt answer

25 contempt appeared and ordered to answer but didnt answer

25 other modes in !ec 3 appeared and ordered to answer but didnt answer

2" pay fees denied genuiness but proven wrong2# compel inspection order refused inspection

2$ compel order of e%amination refused e%amination

RULE 30


26/165

Trial

Section 1.Notice of $rial% &pon entry of a case in the trial calendar' the cler shall notify the?

parties of the date of its trial in such manner as shall ensure his receipt of that notice at least five

()* days before such date% (+a' "++*

0efinition of -rial $ a judicial investigation and determination of the #88G78 between

the parties to an action% whether they are issues of law or fact% before a court that has

jurisdiction over the cause. #t is governed by established procedures and involves offering

of testimony or evidence

When is a case ready for trial $

o when the issues are joined. -he issues are joined when all the parties have placed

their respective theories and terms of dispute before the court.

o After the termination of pre&trial a case is ready for pretrial after the last

pleading filed!

o ,ence% premature when> *O A*8W75 has been filed yet% including that of )p

Section 2.Ad,ournments and postponements% A court may ad,ourn a trial from day to day' and? to any stated time' as the expeditious and convenient transaction of business may require' but

shall have no power to ad,ourn a trial for a longer period than one month for each ad,ournment

nor more than three months in all' except when authori-ed in writing by the Court Administrator'

.upreme Court% (/a' "++*

-his is in accord to the mandatory continuous trial system admin circ )&JJ% 1&1B&JJ%

0avide! for speedy administration of justice

Section 3."equisites of motion to postpone trial for absence of evidence% A motion to postpone?

a trial on the ground of absence of evidence can be granted only upon affidavit showing themateriality or relevancy of such evidence' and that due diligence has been used to procure it% 0ut

if the adverse party admits the facts to be given in evidence' even if he ob,ects or reserves theright to ob,ect to their admissibility' the trial shall not be postponed% (1a' "++2 0ar !atter No%

34/' +5 6uly 5773*

-o postpone trial% where one was unable to show evidence or show witness% one must

show an A66#0A3#- which contains>

o -he evident is relevant

o 0iligent efforts have been e2ecuted to procure evidence

-he opponent may rebut this by>

o A0'#- the facts sought to be proven by the absent evidence even if still subject

to admissibility!

=ut the postponement will not be denied when there is only mere admission that anabsent witness be ;actually in the trial so that the court can e2amine the witnessF if not% it deprives the court of

intelligent reflections

*ote> if there is no )day notice on motion for postponement of pretrial $ such motion will

be denied

Section 4."equisites of motion to postpone trial for illness of party or counsel% A motion to?

postpone a trial on the ground of illness of a party or counsel may be granted if it appears upon


27/165

affidavit or sworn certification8 that the presence of such party or counsel at the trial is

indispensable and that the character of his illness is such as to render his non9attendance

excusable% ()a' "++*

8medical certificate under oath

@eneral 5ule> motions for continuance or postponement is *O- A 'A--75 O6

5#@,-F it rests on the 8OG*0 0#8C57-#O* of the court

o *ot disturbed% e2cept gadlej

Criteria in granting postponements

o Only on '75#-O5#OG8 @5OG*08

5eason> court9s discretion is for the ends of justice and fairness with

respect for the rights and procedural due process% not for convenience of

the courts or the parties nor speed

o " grounds

5eason of the postponement

#e no evidenceKwitnessF sic:ness of partyKcounsel

'erits of the case of the movant

Section 5.Order of trial% .ub,ect to the provisions of section + of "ule /5' and unless the court?

for special reasons otherwise directs' the trial shall be limited to the issues stated in the pre9trial

order and shall proceed as follows:

(a* $he plaintiff shall adduce evidence in support of his complaint2

(b* $he defendant shall then adduce evidence in support of his defense' counterclaim'

cross9claim and third9party complaints2

(c* $he third9party defendant if any' shall adduce evidence of his defense' counterclaim'cross9claim and fourth9party complaint2

(d* $he fourth9party' and so forth' if any' shall adduce evidence of the material facts

pleaded by them2

(e* $he parties against whom any counterclaim or cross9claim has been pleaded' shall

adduce evidence in support of their defense' in the order to be prescribed by the court2

(f* $he parties may then respectively adduce rebutting evidence only' unless the court'

for good reasons and in the furtherance of ,ustice' permits them to adduce evidence upon

their original case2 and

(g* &pon admission of the evidence' the case shall be deemed submitted for decision'

unless the court directs the parties to argue or to submit their respective memoranda or

any further pleadings%

;f several defendants or third9party defendants' and so forth' having separate defenses appear by

different counsel' the court shall determine the relative order of presentation of their evidence%

(5a' "/4*


28/165


29/165

,ow to withdraw> by leave of court upon cause shown

Section 7..tatement of ,udge% During the hearing or trial of a case any statement made by the?

,udge with reference to the case' or to any of the parties' witnesses or counsel' shall be made of

record in the stenographic notes% (/a' "/4*

Section 8..uspension of actions% $he suspension of actions shall be governed by the provisions?

of the Civil Code% (n*

Section 9.6udge to receive evidence2 delegation to cler of court% $he ,udge of the court where?

the case is pending shall personally receive the evidence to be adduced by the parties% +udge of the court where case is pending! shall P758O*A receive the

evidence adduced by the parties

o 72cept% the Cler: of Court who is a bar member! can receive>

#n default or e2 parte proceedings

#n any case when the parties agree in writing

-his is different by trial of commissioner because the cler: cannot rule on objections to

admissibility of evidence nor rule on its admissibility.

RULE 31

Consolidation or Severance

Section 1.Consolidation% #hen actions involving a common question of law or fact are pending? before the court' it may order a ,oint hearing or trial of any or all the matters in issue in the

actions2 it may order all the actions consolidated' and it may mae such orders concerning

proceedings therein as may tend to avoid unnecessary costs or delay% (5*


30/165

Consolidation is when actions involving a common uestion of law or fact are pending

before the court

o -here must be " or more cases

o =efore the same judge

#f before different judges% none can impose on another the duty to hear

and decide the case

=ut there are e2ceptions see jurisprudence

) ways of consolidation

o 5ecast the cases already instituted and conduction one hearing and one decision

o Consolidate the e2isting cases and hold only one hearing and render one decision

o ,ear only the principal case and suspend the others until there is judgment on

principal case

Consolidation is a 'A--75 O6 0#8C57-#O*

o 0oes not warrant mandamus

-78- to warrant Consolidation

o As long as the cases involve the resolution of uestions of law or facts in

common with each other

,ence% the technical difference of action and a proceeding becomesinsignificant

8ometimes% even if the cases are presented before different judges% it can

be consolidated

Consolidation is 'A*0A-O5 when it involves the same parties and same subject

matter and that consolidation will prevent multiplicity of suits

aw provides that consolidation of civil and criminal cases is allowed even up to CA

levelM!

o es% even to 8C the one with the lower @5 number% ie filed earlier!

Section 2..eparate trials% $he court' in furtherance of convenience or to avoid pre,udice' may?

order a separate trial of any claim' cross9claim' counterclaim' or third9party complaint' or of any

separate issue or of any number of claims' cross9claims' counterclaims' third9party complaints or

issues% (+a*

!"# 33$ D#%!# &' #(ID#)*#

Section 1.Demurrer to evidence. After the plaintiff has completed the presentation of his evidence% the

defendant may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no

right to relief. #f his motion is denied he shall have the right to present evidence. #f the motion is grantedbut on appeal the order of dismissal is reversed he shall be deemed to have waived the right to present

evidence. 1a% 5)B!

1. 5euisites

a. After the plaintiff as completed evidence presentation

b. -he facts and law show that plaintiff has shown no right to relief

c. On motion of defendant

". Concept of 0emurrera. -he rule allows the defendant for 0#8'#88A O6 -,7 CA87 after the plaintiff has

presented his evidence on the ground of insufficiency of evidence and on ground that the


31/165

plaintiff is not entitled for a reliefF the effect is on the stopping the defendant to present

his cause already because he is not entitled to relief

b. #t authori(es a judgment on the '75#-8 of the case W#-,OG- the defendant having to

submit evidence on his part as he would ordinarily have to do because the plaintiff9s

evidence shows that the plaintiff is *O- 7*-#-70 to relief sought.c. #t is one of the tools to e2pedite the termination of an action li:e '-0!

d. #f the trial court 07*#78% this means that the evidence is sufficient for an award ofjudgment and the effect is that the trial court can continue receiving evidence to continue

the case

i. 8uch denial is not final but interlocutory because it didn9t dispose of the case yet

$ the defendant can still present his evidence

). 7ffects

a. #f the demurrer is deniedi. 0efendant has the right to present evidence

ii. #nterlocutoryF case goes on to receive evidence of defendant so that all the facts

and evidence of the parties may be placed for adjudication

b. #f the demurrer is granted

i. Case can be dismissed on merits

c. #f the demurrer is granted but reversed on appeal

i. -he defendant is deemed to have waived the right to present evidence

4. '-0 v 0emurrer to evidence

&otion to 'ismiss 'emurrer to (vidence

before answer after plaintiff rests his case

ten grounds one ground) is there a showing of a right to relief

if denied, defendant files answer if defendant, he presents evidence on defense

B.

!"# 34$ +!D,%#)& ') &-# "#/DI),S

Section 1.6udgment on the pleadings. Where an answer fails to tender an issue% or otherwise admits the

material allegations of the adverse partys pleading% the court mayF on motion of that party% irect

ugent on such peaing. ,owever% in actions for declaration of nullity or annulment of marriage or forlegal separation% the material facts alleged in the complaint shall always be proved. 1a% 51J!

1. 5euisitesa. Answer failed to tender an issue or admitted the material allegation of the adverse party9s

pleading

i. ,ence% it is not proper when there are specific denials or tenders an issue

b. On motion of any party

". @rounds for +udgment on Pleadings

a. -he answer failed to tender an issue

i. 72> made denials not in conformity of ma:ing specific denials ie made general

denials or denials that is within her :nowledge or can be easily ascertained by

her!

a! A negative defense is the specific denial of the material fact or facts alleged in the pleading of theclaimant essential to his cause or causes of action.

b! An affirmative defense is an allegation of a new matter which% while hypothetically admitting the material

allegations in the pleading of the claimant% would nevertheless prevent or bar recovery by him. -heaffirmative defenses include fraud% statute of limitations% release% payment% illegality% statute of frauds%

estoppel% former recovery% discharge in ban:ruptcy% and any other matter by way of confession andavoidance. Ba!


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b. Admission of the material allegations of adverse party9s pleading can either be e2pressed

or implied

i. ie failure to answer reuest for admissions!

ii. 6ailure to offer proof of truth of one9s own claim

iii. 6ailed to object to movant9s allegationsc. 6ailed to deny the genuineness of the document under oath

i. 72cept statement of accounts which must be proven). 72ceptions

a. Actions for Annulment of marriage or legal separation the material facts must always be

proved

b. Gnliuidated damages must be proved!

c. Admission is only of fact% not of material allegations of fact

d. #nsufficiency of facts4. *otes

a. 'otion for judgment on pleadings may be e2&parte where the answer admits all the

material averments of the complaint

b. *o need for supporting papers% pleadings alone

c. Appeal can be had on certiorari% rule 4B

*udgment on +leading *udgment by 'efaultdefendant answers but failed to tender an issue defendant does not answer

no evidence is received evidence of plaintff may be received

decision is based on complaint and answer decision is based n pleading of claimant and his evidence

*udgment on +leading !ummay judgment

failed to tender an issue issue is not enuine

3 days notice of hearing 1 days notice

judgment terminates the entire proceeding may be partial

plaintiff only claimant or defendant

pleadings alone pleadings - admissions, affidavit or depositions

!"# 34$ S!%%/ +!D,%#)&S

Section 1. .ummary ,udgment for claimant. A party see:ing to recover upon a claim% counterclaim% orcross&claim or to obtain a declaratory relief may% at any time after the pleading in answer thereto has been

served% move with supporting affidavits% depositions or admissions for a summary judgment in his favor

upon all or any part thereof. 1a% 5)4!

1. 5euisites

a. -he movant is the party who see: to recover from a claim or to obtain a declaratory reliefb. An answer has been served by the other party

c. -here are supporting affidavits% depositions% and admissions

". 0efinition of 8ummary judgment $ judgment by which a court that there is no genuine issuebetween the both parties that may be rendered efore tria after oth parties have peae

upon appication y one party supporte y affiavits epositions or other ocuentswith

notice upon adverse party who may file an opposition supported by affidavits% depositions or other

documents

a. #t is a device for weeding out sham claims or defenses at an early stage of litigation to

avoid e2penses and time involved in a trialb. -,757 #8 *O 875#OG8 CO*-5O3758 $ no genuine issues or the issues are sham%

false


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i. 0efinition of @enuine #ssue $ an issue of fact that calls for presentation of

evidence that are not fictitious% contrived% in bad faith an unsubstantial

1. but if the issues were disputed% 8+ cant replace trial

c. 0efinition that # li:e> A summary judgment is one granted by the court upon motion by a

party for an e2peditious settlement of the case% there appears from the pleadings%depositions% admissions and affidavits that there are no issues of fact involved e2cept as

to amount of damages and that therefore the moving party is entitled to judgment as amatter of law

d. /note% the judgment can just be partial or whole

). -78-

a. Whether the pleadings affidavits and e2hibition in support of the motion are

8G66#6#C7*- to overcome the opposing papers and to justify a finding as a matter of

law that there is no defense to the action4. 0istinctions

!ummary *udgments *udgment on +leadings &otion to 'ismiss

.he issue is not genuine .here are no issues

.he issues having been raised by pleading, are the issues genuine,!ham, ficititious as evidence by /'/0 /re there issues arising from pleadings0

round is limited to) the issue is not genuine founded on grounds under Rule 1"

t can traverse not just complaint but other pleadings also !ome are limited to face of complaint

iled after answer iled +rior /nswer

B. Procedure

a. 'otion by either party

b. =asis of Court Action

i. 0etermine whether the issues are genuine or not and not to receive evidence on

the issues set up in pleadingsF nevertheless% a hearing can be had based on the

court9s discretion issue hearing no issue deciding!

c. =urden of Proof

i. the movantii. #f the plaintiff $ prove CoA e2ists and such was just a delaying tacticF after

which% defendant must show that he is entitled to defend

d. 8teps

i. #s there a genuine issue as to any material fact?

ii. Assess damages

iii. #f trial proceeds% segregate material facts with and without controversy thenma:e an order!

iv. #f summary judgment is granted were there are

Section 2. .ummary ,udgment for defending party. A party against whom a claim% counterclaim% or

cross&claim is asserted or a declaratory relief is sought may% at any time% move with supporting

affidavits% depositions or admissions for a summary judgment in his favor as to all or any part thereof.

"a% 5)4!

1. #f the summary judgment is for defending party% the motion may be filed A*-#'7 unli:e summary

judgment for claimant which allows summary judgment

Section 3.!otion and proceedings thereon. -he motion shall be served at least ten 1! days before the

time specified for the hearing. -he adverse party may serve opposing affidavits% depositions% or admissions

at least three )! days before the hearing. After the hearing% the judgment sought shall be rendered forthwithif the pleadings% supporting affidavits% depositions% and admissions on file% show that% e2cept as to the


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amount of damages% there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law. )a% 5)4!

Section 4. Case not fully ad,udicated on motion. #f on motion under this 5ule% judgment is not renderedupon the whole case or for all the reliefs sought and a trial is necessary% the court at the hearing of the

motion% by e2amining the pleadings and the evidence before it and by interrogating counsel shall ascertain

what material facts e2ist without substantial controversy and what are actually and in good faithcontroverted. #t shall thereupon ma:e an order specifying the facts that appear without substantial

controversy% including the e2tent to which the amount of damages or other relief is not in controversy% and

directing such further proceedings in the action as are just. -he facts so specified shall be deemed

established% and the trial shall be conducted on the controverted facts accordingly. 4a% 5)4!

Section 5.Form of affidavits and supporting papers. 8upporting and opposing affidavits shall be made onpersonal :nowledge% shall set forth such facts as would be admissible in evidence% and shall show

affirmatively that the affiant is competent to testify to the matters stated therein. Certified true copies of all

papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith. Ba% 5)4!

1. 5euisites of affidavits

a. =ased on personal :nowledge that disregard statements of hearsay

b. 8et forth facts admissible in evidence plus% no to reiterations of pleadings or G6!c. 'ust show affirmatively that affiant is competent to testify on matters stated therein

d. 8worn or certified copies of all papers are attached and served on opponent

Section 6.Affidavits in bad faith. 8hould it appear to its satisfaction at any time that any of the affidavitspresented pursuant to this 5ule are presented in bad faith% or solely for the purpose of delay% the court shall

forthwith order the offending party or counsel to pay to the other party the amount of the reasonable

e2penses which the filing of the affidavits caused him to incur including attorneys fees% it may% after

hearing further adjudge the offending party or counsel guilty of contempt. a% 5)4!

!"# 36$ +!D,%#)&S I)/" 'D#S /)D #)& &-##'

Section 1."endition of ,udgments and final orders. A judgment or final order determining the merits ofthe case shall be in writing personally and directly prepared by the judge% stating clearly and distinctly the

facts and the law on which it is based% signed by him% and filed with the cler: of the court. 1a!

/this does not apply to interlocutory orders

1. =asis $ 8ec 14% Art E $ no decision shall be rendered by any court wKo e2pressing clearly the facts

and the law which it is based

a. A due process reuirement so a party may :now why he lost and that he may be guidedon appeal

b. =ut this reuirement is limited to 07C#8#O*8

i. 0ecisions are those givent due course after briefs and pleadings are filed

1. not> order or resolution denying due course to certiorari

c. imited also to courts of justicei. *ot courts of record

1. where the cases are non&litiguous li:e 0O7

". military courts are not courts of lawii. Or uasi&+udicial bodies li:e CO'77C

". 0efinition of +udgment $ final consideration and determination by the court of the rights of the

parties as those rights presently e2ist upon matters submitted to it in an action or proceedingl it is

the law9s word on a judicial proceeding

). 5euisites

a. #n writing% personally and directly prepared by the judge


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b. 8tates clearly Q distinctly the facts and the law where it is based

i. 6indings of 6act $

1. 'eaning

a. facts% not conclusions of law

b. not ultimate facts but supporting evidentiary factsi. court need write every piece of info judges should

sift the record!". *ot 72amples

a. ;owner of property< $ fact in pleading but not 6o6

). 5emedies for 6ailure to ma:e 6o6

a. 'ay be remanded to C to ma:e findings

ii. @5> if there are no facts% such is not allowed or 8in Perjuicio judgments!

1. these are incomplete decisions because the facts where the decisionsare based has not happened yet

". but these are different when the judgment is withheld to prevent

lea:age preparation v promulgation of judgment!

iii. 72ceptions

1. 'inute 5esolutions $ even if there is no 6o6 but must have legal basis

a. #ssued when a case is patently without merit% issues are factual

in nature or if filed merely to forestall e2ecution of judgment

c. Contains a dispositive partd. 8igned by judge

i. 72ceptions>1. 'inute resolutions need not be signed by all judges

ii. Can be done even if outside province or already permanently transferred to

another court

1. @5> the ta:e&over judge inherits all the cases

a. Gnless there is motion of any partyendorsed by presidingjudge to Office of Court Administrationmay refer to judge

who heard the case but was transferred e2cept if transferred

to a higher jurisdictional ladder or retired or not in

service!then transfer the records by mail

e. 6iled with CC

i. -he filing is the rendition of judgment1. not the mere pronouncement in open court

a. because the court can still modify

ii. Promulgation or rendition! $ process by which a decision is published%

officially announced% :nown to the public or delivered to CC for filing

iii. Periods

1. 8c $ "4mos

". CA $ 1"mos

). C $ )mos

a. 0one upon termination of trial or upon

completionKsterminationKsubmission of memorandai. 72ception> lac: of steno notes if its is a new judge

that didn9t hear the case

4. /if not met% there must be a certification why a decision was not madeFin any case% will still decide thereat

f. 8igned by Parties

g. Other 5euisites

i. +udgment must conform to theory of pleadings

ii. +udgment must be clear and complete1. conditional judgments not allowed

iii. 8ome decisions have forms ie 'emorandum 0ecisions

1. these are decisions on appealed cases


36/165

". may adopt by 576757*C7 the findings of fact and conclusions of law

in the lower court

a. not just remote reference but direct access

b. reference only when the facts are accepted by parties and

easily determinable by the judge wK no doctrinal complicationsie simple litigations or ord collection cases

4. Parts of a judgmenta. Opinion of the court $ contains the findings of fact and conclusions of law

b. 0isposition of the case $ final and actual diposition of rightsc. 8ignature of the judge

Section 2.Entry of ,udgments and final orders. #f no appeal or motion for new trial or reconsideration is

filed within the time provided in these 5ules% the judgment or final order shall forthwith be entered by the

cler: in the boo: of entries of judgments. -he date of finality of the judgment or final order shall be

deemed to be the date of its entry. -he record shall contain the dispositive part of the judgment or final

order and shall be signed by the cler:% within a certificate that such judgment or final order has become

final and e2ecutory. "a% 1% 5B1!

1. *otes

a. the prevailing party must file a motion for entry unless there is an appeal or '5 of'*-!

b. -he date of finality of decision is distinct from date of entryF the former is where you

cont the days for appeal

". 5ules on Amendment of +udgment

a. Allowed prior it is final and e2ecutory

i. 'otu propio or on motionb. After finality

i. *ot allowed to ma:e sustantia aenents1. else% null and void

ii. 72cept

1. clerical errors or mista:es

a. due to inadvertence or negligence

i. ie arithmeticb. clarifications of ambiguityK supplying an omission or stri:ing

a superfluity

". supervening events where for the highest interest of justice it must be

amendeda. grounds of> lac: of jurisdiction and fraud

i. or retroactive penal laws

c. Clerical v +udicial amendment> -78-

i. 0oes it involve the e2ercise of judicial functions?

1. Clerical $ mere failure only to preserve or correcyly reporesent in the

record the decision

a. -his is called *G*C P5O -G*C amended

d. 5eason> should be for e2ecution already

i. -here is presumption of validity of judgmentii. All litigation must come to an end). 5ules on #nterpretation of judgment

a. @5> when there is conflict n body and fallo% fallo prevails

b. 72ceptions>

i. #ntent shows otherwiseK ratio decidendi

ii. 'ista:e in the fallo

4. inds of +udgment

a. +udgment upon compromise agreement


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i. =inding li:e res judicata including )p! unless contrart to law or personKlawyer

has no aouthority to eneter into compromise agreement

b. +udgment on consent

c. +udgment on confession

d. Amended judgment v supplemental judgmenti. 5eplaces v adds stands side by side!

B. 3oid judgmenta. 0octrine of -otal *ullity

i. A void judgment is in leal effect no judgment at allw here no rights can be

divested or obtained

ii. Can be attac:ed directly or collaterally

iii. *ot final

1. *ot a bar to 5+b. 0octrine of Operative 6acts

i. Where the conseuences of the judgment cannot be justly ignored

1. ie military court proceedings where it was once a civilian court

Section 3.6udgment for or against one or more of several parties. +udgment may be given for or against

one or more of several plaintiffs and for or against one or more of several defendants. When justice so

demands% the court may reuire the parties on each side to file adversary pleadings as between themselves

and determine their ultimate rights and obligations. )!

Section 4. .everal ,udgments. #n an action against several defendants% the court may% when a several

judgment is proper% render judgment against one or more of them% leaving the action to proceed against the

others. 4!

cured by appeal not certiorari else res judicata!

Section 5. .eparate ,udgments. When more than one claim for relief is presented in an action% the court% at

any stage% upon a determination of the issues material to a particular claim and all counterclaims arising outof the transaction or occurrence which is the subject matter of the claim% may render a separate judgment

disposing of such claim. -he judgment shall terminate the action with respect to the claim so disposed of

and the action shall proceed as to the remaining claims. #n case a separate judgment is rendered the court byorder may stay its enforcement until the rendition of a subseuent judgment or judgments and may

prescribe such conditions as may be necessary to secure the benefit thereof to the party in whose favor the

judgment is rendered. Ba!

Section 6.6udgment against entity without ,uridical personality . When judgment is rendered against two

or more persons sued as an entity without juridical personality% the judgment shall set out their individual or

proper names% if :nown. a!

RULE 37

e! Trial or Reconsiderations"

"-hese are the remedies when you have adverse judgment. ou must e2haust that of the lower

court first before moving on to others.


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Section 1.@rounds of and period for filing motion for new trial or reconsideration. Within the

period for ta:ing an appeal% the aggrieved party may move the trial court to set aside the

judgment or final order and grant a new trial for one or more of the following causes materially

affecting the substantial rights of said party>

(a* Fraud' accident' mistae or excusable negligence which ordinary prudence could not

have guarded against and by reason of which such aggrieved party has probably beenimpaired in his rights2 or

(b* Newly discovered evidence' which he could not' with reasonable diligence' have

discovered and produced at the trial' and which if presented would probably alter the

result%

Within the same period% the aggrieved party may also move for reconsideration upon the grounds

that the damages awarded are e2cessive% that the evidence is insufficient to justify the decision or

final order% or that the decision or final order is contrary to law. 1a!

#otion $or e! Trial

1. When can there be a new trial or consideration $a. within the period for ta:ing an appeal

i. motion can still be had even if one made an appeal alreadyF the :ey is

;ta:ing an appeal< and not ;perfecting an appeal< which is upon the last

day of appeal to any partyb. when the relief is sought of a judgment *O- 7- 6#*A / *O- 7-

7R7CG-O5

i. cannot be e2tended e2cept in 8C

c. usually fr

125550000 Civil Procedure Reviewer

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