Remedial Law Bar 2011 Notes Roland Glenn T.

Tuazon Ateneo de Manila University

Jurisdiction over the offense. This is essentially the same as jurisdiction over subject matter. Jurisdiction over the person. This is jurisdiction over the person of the accused. Filing fees are not necessary.

TABLE OF CONTENTS: 1. CIVIL PROCEDURE a. POST-JUDGMENT REMEDIES b. PROVISIONAL REMEDIES c. SPECIAL CIVIL ACTIONS CRIMINAL PROCEDURE EVIDENCE SPECIAL PROCEEDINGS ENVIRONMENTAL CASES

2. 3. 4. 5.

PART I: CIVIL PROCEDURE

Jurisdiction Stuff to take note of in jurisdiction: What is the definition of jurisdiction? Jurisdiction over the case or the subject matter? (Subject matter jurisdiction) Jurisdiction over the person or the defendant? Know the rules on filing fees.

N.B. vis--vis for criminal cases: Definition the same, as conferred by law, except you have to add that venue is jurisdictional. Territory is intertwined with jurisdiction, unlike in civil cases, where parties can agree on venue or it can be subject to waiver.

What is the definition of jurisdiction? o The power of the court to hear, try, or decide the case o As conferred by law How will the court know that it has jurisdiction? o From the allegations of the complaint. o What if the defense interposes claims or defenses outside the jurisdiction of the court? It does not divest the court of its jurisdiction; otherwise, jurisdiction will be at the mercy of the defense. Where do you take jurisdiction over the case? o Conferred by law as well. o Study BP 129, amended by RA 7691. Do not assume that RA 7691 tells all. There are other laws too. Distinguish jurisdiction from venue: o Jurisdiction is the power to hear and decide a case. Venue is where the action is instituted and tried. o Venue can be waived; jurisdiction, not. Distinguish errors of jurisdiction from errors of judgment: o When a court takes cognizance of a case over the subject matter of which it has no jurisdiction, it commits an error of jurisdiction. It is reviewable by certiorari. o When a court makes errors in the exercise of such jurisdiction, it is just an error of judgment, reviewable by appeal. What is the jurisdiction of the RTC? o 1. Right/title/interest over real property, where value is: Value is > 20K (OMM), > 50K (MM) Claim for ejectment due to unpaid rentals of over 400K. Which has jurisdiction?

MTC. Ejectment is always under MTC, regardless of the claim over unpaid rentals. Recovery of possession, not ejectment. Fair market value of property is 1.5M. The assessed value of the property is 80,000. Property is located in MM. Which has jurisdiction? RTC, based on assessed value (not FMV) which is over 50K. Recovery of possession does not necessarily mean ejectment (ex. Accion publiciana). Value is determined by assessed value if it involves right, title, or interest Ouano case? There was discussion whether FMV or assessed value dictates. Assessed value wins. 2. Amount incapable of pecuniary estimation Examples: rescission, reformation of contract, specific performance Is expropriation capable of pecuniary estimation? Expropriation is always filed with the RTC. Though the subject matter is capable of pecuniary estimation, the action is exclusively instituted in the RTC. What about declaratory relief? RTC always has jurisdiction, and the SC does not except when there is an issue of constitutionality. There is no such thing as determination of value; just a determination of validity. What about support? Even if its amount can be determined, the law confers it to the Family Courts. Foreclosure of mortgage? Two views: one says that its always with the RTC, because it only covers the security of the property. The original action is always for recovery of money.

The other view is that it must be governed by the value of the security. o 3. Family cases/marriage Includes support, annulment, nullity, etc. o 4. Juvenile/agrarian case o 5. Other claims, where claim exceeds 300K (OMM) or 400K (MM) The original text gives lower values. When was it adjusted? Original costs took effect March 25, 1994 1999 adjusted OMM from 100K to 200K 2004 adjusted both MM and OMM to 400K and 300K respectively Always take note of the word exceeding so the exact amount is for the lower court. o 6. Probate of will, determination of inheritance same amounts Considering that the MTC has jurisdiction over probate cases, at times, what if the value of the estate is 100K? Can the probate of a will be subject to summary procedure? No. The rules on summary procedure explicitly exclude probate proceedings. Note that the MTC has a number of procedures. There are ordinary proceedings and summary proceedings, and now, small claims. So the not exceeding 100K (OMM) and not exceeding 200K (MM) only applies for summary proceedings. But it explicitly excluded probate proceedings. What is the jurisdiction of the MTC over small claims? Not exceeding 100K. o 7. Admiralty cases same amounts o 8. All cases not within the exclusive jurisdiction of any court, tribunal, person, or body exercising judicial or quasi-judicial functions In determining the 300K/400K, can you include damages, interest, attorneys fees, litigation costs, etc?

NO. Only limit the amount to the demand or the claim. The totality rule only covers purely money claims, and does not include incidental claims. o But remember that there can be a principal action for damages, in which the amount of damages claimed determines the amount. This is not covered by RA 7691, this is covered by 95-9-94. Small claims o What is the amount? Not exceeding 100K. o Is there a distinction between OMM and MM in small claims? No. o What should be included in the 100K? The claim itself. Exclusive of damages What if the principal action is for damages? Does not apply. Actions for damages are not covered by small claims actions, because these have to be ascertained. These are not akin to sum-of-money cases. o Does it cover quasi-delicts? Yes. (Covers: fault/negligence, quasi-contract, or contract) o What if it arises from commission of an offense? Yes for the civil aspect of such (fault/negligence). Just remember that when you file a criminal case, the civil aspect is likewise filed (unless reserved, waived, or filed ahead). So it cannot be the subject of small claims. BUT if it is filed ahead or reserved, then it can be the subject of an action for small claims. o What, therefore, are the actions covered by small claims? A. Money owed under: Contract of lease Contract of loan Contract for services Contract of sale Contract of mortgage

B. Damages from: Fault or negligence Quasi-contract Contract C. Enforcement of a barangay amicable settlement Do you need a lawyer to file the complaint? Do you need to prepare a regular complaint? No need for a lawyer. There is also a standard form provided. What must be filed in the MTC to commence the claim? 1. Accomplished and verified Statement of Claim (Form 1-SCC) 2. CNFS 3. 2 photocopies of the actionable document 4. Affidavits of witnesses and other evidence Is joinder allowed? Yes, as long as the aggregate amount doesnt exceed 100K What is the next step? 1. Court may dismiss the small claim 2. Otherwise, it issues summons on the same day directing respondent to submit a verified response 3. Court also issues a notice to both parties directing them to appear for hearing on a specified date with warning against unjustified postponement. 4. Respondent submits verified response within 10 days from receipt of summons, with photocopies of documents and affidavits of witnesses. What if there is no response? o Court grants the claim. o But may reduce the amount of damages claimed, if excessive. When is a counterclaim allowed requisites? 1. It is within the coverage of the small claims court, exclusive of interests and costs 2. Arises from the same transaction or event as plaintiffs claim 3. Does not require joinder of third parties 4. Not subject of another pending action

What if the defendant fails to raise such counterclaim? It is barred. o How will you address the problem where the claim is for sum of money not exceeding 100K, and it is outside MM? There is an overlap here between summary procedure and small claims procedure. Which is preferred? This is still open for discussion, and is not yet clear. Sir suggests that the option is upon the complainant, since there is concurrent jurisdiction of both small claims court and court of summary procedure. o How is the hearing conducted? The judge first attempts to arrive at mediation, conciliation, early neutral evaluation, or any mode of JDR. Failing that, the JDR judge also proceeds to hearing, which must terminate within 1 day. N.B. Sec. 21 of BP 129, as amended, provides that the RTC has concurrent original jurisdiction for: o 1. Certiorari, prohibition, mandamus, quo warranto, habeas corpus, injunction, enforceable within respective regions o 2. Actions affecting ambassadors, other public ministers, and consuls What is the MTC jurisdiction? o Just the opposite of everything in RTC o Then just add ejectment/unlawful detainer o How do you know whether its ejectment/UD or claim over real property or a title therein? If the issue is just possession, its E/UD. If it involves rights of the parties to the property, then its not. What is the jurisdiction of the CA? o It has both original and appellate jurisdiction. o Original: habeas corpus, habeas data, certiorari, prohibition, mandamus, quo warranto, writ of amparo, annulment of judgment of RTC N.B. Its original jurisdiction is exclusive as regards annulment of judgment of RTC o Appellate: ordinary appeal (notice of appeal), petition for review, over quasi-judicial bodies

What is the jurisdiction of the SC? o Also both original and appellate jurisdiction. o Original: habeas corpus, habeas data, certiorari, prohibition, mandamus, quo warranto, writ of amparo, disciplinary actions over PLUS Actions against members of the Bar [concurrent with IBP]; actions against ambassadors, public ministers, consuls, etc.; constitutionality of treaties, laws, proclamations, etc.; declaratory relief only when there is a question of constitutionality o Appellate: decision of CA, decision of CTA en banc, decision of SB, decision of RTC on pure questions of law; REMEMBER this motherhood statement: the only way to go up to the SC is for petition for review on certiorari (RULE 45). This applies to civil and criminal cases, except if the penalty in a criminal case is death, RP, of life imprisonment. Jurisdiction over the person of the defendant: o 1. Voluntary appearance By submitting to the jurisdiction of the court; ex. Appearing in court or filing an answer or filing motion for extension of time without disputing the courts jurisdiction o 2. Proper service of summons Rule 14 Filing fees: o Rule #1: payment of filing fees is jurisdictional in civil cases o Rule #2: how does the court determine filing fees? You include interest, damages, attorneys fees etc. pay everything that you allege for court fees But for jurisdictional purposes, just the principal claim o Rule #3: Sun Insurance Filing fees must be paid within prescriptive period or reglementary period (for appeals or compulsory counterclaims), or else it is deemed prescribed

Rule #4: Alday v. FGU Insurance Permissive counterclaims require docket fees The claim does not arise from the principal action, but involves the same parties. This could easily have been filed separately. Compulsory counterclaims do not require docket fees BUT read Korean Technologies case of 2009 this is how you answer the question whether compulsory counterclaims require filing fees From nowhere, this case required that even compulsory counterclaims have docket fees paid. Korean Technologies cited Rule 141. But in practice, based on an SC Resolution, the collection of filing fees on compulsory counterclaims is suspended. This has not been lifted yet. Alday: Payment of filing fees for compulsory counterclaims is not required. But you have to take note of Korean Technologies now Lien on the judgment? If there are damages granted to the complainant, but there has been lack of payment of filing fees. The payment of docket fees is a lien on the damages. Also applies if damages are awarded in the judgment but not specified in the pleading. What if the claim has already ripened upon the filing of the complaint, but by omission, but you were not able to allege it. Can this be a basis for a lien on the judgment? Proton Pilipinas v. Banque Nacional There was a claim that has ripened but was not included, and there were interests that would ripen once the action is pending. SC said that a claim ripened during the pendency of the case, it can be a lien on the judgment.

But if you did not allege it, the court cannot grant an award because you did not pay docket fees. o What is the rule on deficient or insufficient payment of filing fees? Rivera v. Del Rosario You have to pay full filing fees. The deficiency must not be based on the fault of complainant. But if the fault lay on the wrong assessment of the clerk of court, there is a chance to pay the deficiency. Jurisdiction is not automatically lost. Clerk of court makes a deficiency assessment. There must be no intention to defraud. Planters v. Fertiphil: o Planters did not pay appellate docket fees. But this was in 1992, prior to the 1997 Rules on Civil Procedure, which began the requirement of appellate docket fees. The 1997 Rules must not apply retroactively. Thornton: o Husband filed for habeas corpus in RTC Makati to recover child from wife o What are the two kinds of habeas corpus? N.B.: there are two kinds of habeas corpus custody of minors and regular habeas corpus in the Rules of Court o RTC Makati dismissed the case because the child was allegedly in Basilan. o What is the effectivity of writs of habeas corpus? N.B.: Effectivity of writ issued by regular court only enforceable in the territorial jurisdiction. But CA and SC everywhere. o Filed with the CA, but was denied because the RTC (Family Courts) have original jurisdiction over custody of minor Habeas Corpus cases. o HELD: Can file with CA. It has jurisdiction. SC has jurisdiction, too. The CA and SC have concurrent jurisdiction over habeas corpus cases. o But always remember that when you talk about concurrent jurisdiction, you still have to follow hierarchy of courts.

Herrera v. Bollas o Ejectment case (1 year period). Filed within the proper period, but the complaint was amended to add additional defendants beyond the 1 year period. Does the court still have jurisdiction? HELD: MTC still had jurisdiction for ejectment (based on original complaint.) o After the lapse of the year period for ejectment, has the claim prescribed? No. N.B. One year period is not prescriptive period. You just file action pubiciana with the appropriate court (RTC or MTC, depending on the assessed value), not the MTC by default (for ejectment). Oca: o Repetition of Tijam v. Sibonghanoy estoppel by laches. After active participation in a case, you cannot question the courts jurisdiction anymore. o Went up to the SC through Rule 43 (appeal to CA from a QJA) o But what is the general rule? Question of jurisdiction can be raised even for the first time on appeal, as long as estoppel by laches does not apply. One cannot question jurisdiction which he himself invoked. (Ex. obtaining affirmative relief against the other party and then after failing to obtain that relief, question the courts jurisdiction) Usually decisions of QJA go up to the CA under Rule 43. What are the exceptions? o 1. HLURB decisions, as provided in charter, appealable to the Office of the President o 2. CTA decisions, under amended rules, appealable to the CTA en banc, then SC o 3. NLRC decisions, although by a QJA, are reviewable by the CA although not under Rule 43, but Rule 65 (GADALEJ). o 4. OMB decisions go to the CA, under Rule 43, for administrative cases. But if there is GADALAEJ, go to the SC, under Rule 65. Mijares:

Which court has jurisdiction over enforcement of foreign judgments? RTC, because enforcement of foreign judgments are incapable of pecuniary estimation. ALWAYS, regardless of amount of judgment, since it is not based on the amount of the claim. In this type of action, you dont need to prove the facts again, etc. o Marcoss group that docket fees must be based on the value/amount of the claim, which is up to the Billions. Is this correct? This rule applies to money claims against an estate, but without judgment yet. Here, there already was a judgment in DC of Hawaii. o How do you impugn a judgment? Lack of notice Lack of jurisdiction Collusion Fraud o What is the rule on Arbitral awards? These must be should be enforced or recognized An arbitral award is not a foreign judgment (Under ADR Rules) Zamboanga Barter Goods: o N.B. Rule 65 is not an appeal. It is a special civil action. o Being one, RTC, CA, and SC have concurrent jurisdiction. When you discuss concurrent jurisdiction, you cannot avoid discussing hierarchy. o But when you talk about appeals, no need to consider hierarchy. The law already makes a decision for you. Can a court lose jurisdiction after acquiring it? o Generally, no. o Exceptions: 1. Subsequent law provides prohibition for continued exercise of jurisdiction 2. Law penalizing the act is repealed by a subsequent law 3. Accused deprived of constitutional right

4. Proceedings are terminated, abandoned, declared void 5. Appeal has been perfected 6. Curative law What is the principle of exercise of equity jurisdiction? When the court is called upon to decide a particular situation and release the parties from correlative obligations, but if it would result in adverse consequences to the parties and the public, the court would go beyond its powers to avoid negative consequences in the release of the parties

Jurisdiction of special bodies and courts CHR: o

Can it review court decisions? No; separation of powers o Can it issue injunctions? No. Just fact finding and investigative. What is the extent of the labor arbiters power on claims for damages by employees? o Action for damages incident to dismissal is part of LAs powers. o BUT NOT if the damages are based on quasi-delict not arising from ER-EE relations. What is the remedy for annulment of NHA awards? o With the Office of the President. o And then from there, Rule 65. What are the cases under HLURB jurisdiction? o 1. Claims of condo buyers against project owner, developer, or dealer o 2. Specific performance of contractual and statutory obligations filed by condo buyers against same parties o Does HLURBs jurisdiction cover actions filed by the project owner, developer, or dealer? No. Its always the other way around. COMELEC: o When can the SC review COMELEC decisions? Only when there is GADALEJ o Can the COMELEC issue writs of certiorari, prohibition, or mandamus?

No. What is the jurisdiction of Family Courts? o 1. Criminal cases where one or more of the accused is below 18 or one or more of the victims was a minor o 2. Petition for guardianship, custody of children, habeas corpus for custody of children o 3. Adoption of children and revocation o 4. Annulment, nullity, and actions on status and property relations of married people o 5. Support and/or acknowledgement o 6. Summary judicial proceedings other the FC o 7. Declaration of status of children (abandoned, dependent, neglected, etc.) and actions on parental authority o 8. Constitution of family home o 9. Cases against minors under the DDA o 10. Violation of Child Abuse Act (RA 7610) o 11. VAWC cases What are the provisional remedies the Family Court can issue? o Restraining order against accused or defendant if there is finding of abuse o Temporary custody over children o Support pendente lite What is the Katarungang Pambarangay Law? o There must be settlement of disputes between individual residents of the same city or municipality, through mediation, arbitration, or conciliation, before the Katarungang Pambarangay. Compliance with this is a condition precedent to filing a complaint or information before the fiscal or court. What are the cases over which the lupon can take cognizance of? o ALL cases between parties residing in the same municipality or city. o What is determinative, residence or postal address? Residence, which is actual place which one inhabits. Must be more or less permanent, not merely transient. But it need not be domicile or legal residence; physical presence is controlling. o X filed a case against Y, who lived in the same barangay, and Z, who didnt. Is barangay conciliation needed?

No. At least one respondent lived elsewhere. What are the exceptions to this rule? o [Nature of a party] o 1. One party is the government or any subdivision/instrumentality o 2. One party is a public officer or employee and the dispute is re: official functions o 3. There is no private offended party o 4. Complaint against juridical entities o [Nature of complaint] o 5. Offenses punishable by imprisonment of more than 1 year or fine exceeding 1000 pesos o 6. Labor disputes arising from ER-EE o 7. Disputes arising from CARL o 8. Action to annul judgment upon compromise o [City/municipality requirement] o 9. Dispute is re: real properties in different cities or municipalities Can be waived by the parties by consenting to submit the case to the lupon first o 10. Parties reside in barangays of different cities or municipalities Except where the barangays adjoin each other and the parties consent to submit the case to the lupon o [Equity] o 11. As determined by the President in the interest of justice, or upon recommendation by the SOJ o 12. Where urgent legal action is necessary to prevent injustice, specifically: A. criminal case where the accused is under custody or detention B. habeas corpus filed by one illegally detained C. actions with provisional remedies D. action may be barred by statute of limitations Where are objections raised? o For objections to referral to the lupon, raise before the punong barangay else, waived o Failure to refer to lupon may be raised as a ground for motion to dismiss else, waived

What is the procedure before the lupon? o 1. Pay filing fees and submit complaint o 2. Within the next day the lupon summons respondents and complainants for mediation o 3. Failure of mediation within 15 days from first meeting: constitute the pangkat o 4. Pangkat has 15 days to resolve the dispute from when it convenes, extendible for another 15 days o Who appears before the lupon or pangkat? Just the parties, without counsel or representative, except minors who may be assisted by next of kin who are not lawyers What is the form for settlement needed? o 1. In writing o 2. In a language known to the parties o 3. Signed by them o 4. Attested by lupon chairman o When may it be executed by the lupon? Within 6 months from date of settlement. If it exceeds 6 months, then it can be enforced by action in the MTC. o Within what period may the settlement be repudiated? 10 days, on the ground of vitiation of consent.

Actions What are the kinds of actions? o Civil Protection or enforcement of a right, or prevention or redress of a wrong Two types? Ordinary Special o Criminal Once the information is in court, only then does it become a criminal action, that has already been prosecuted by the State through the prosecutor. o Special proceedings Establishes a right, status, or condition

When is a civil action commenced? o Upon filing of original complaint in court. o For additional defendants later impleaded, on the date of filing of the later pleading. Are civil actions always based on a cause of action? o No. Distinguish ordinary civil action from special civil action? o There is Cause of Action in ordinary civil action. o Ex. Special Civil Action like declaratory relief does not need cause of action Requisites of cause of action? o 1. Right of one party o 2. Obligation of the other to respect o 3. Breach MOST IMPT! Distinguish cause of action from right of action: o Right of action is the right to commence and prosecute an action to obtain the relief sought. Elements: 1. Existence of cause of action 2. Performance of all conditions precedent to bring the action 3. Right to bring an maintain the action must be held by the person instituting it What is the test of sufficiency of a complaint? o Whether or not, admitting the facts alleged, the court can render a valid judgment upon the same in accordance with the prayer in the complaint o Determined by the facts alleged, not defense alleged What is splitting of a cause of action? o Dividing one cause of action into different parts and making each part a separate complaint o Test: how many wrongs or breaches are there? o Is splitting cause of action a ground for MTD? No it is Res Judicata and Litis Pendentia o Is the rule against splitting of causes of action absolute? No. Except: if the reliefs sought for are cognizable by different tribunals. An example is an Ejectment suit cannot include recovery for unpaid telephone, electric, and water bills, which must be filed in a separate action.

Can there be joinder of cause of action? o Yes. o BUT it is not mandatory. Does there have to be just one breach or numerous violations? o Numerous. o For every cause of action, there is one breach. o For as many breaches as there are, there are as many causes of action. If there is a claim for sum of money, and several claims for damages (moral, exemplary, etc.) are there multiple causes of action? o No. Just one, because claims for damages are incidents of the one breach (failure to pay). There are three promissory notes, with amounts of 50K, 100K, and 200K, and there is just one loan. There was failure to pay. How many causes of action do you have? o Three PNs, three causes of action. Can there be joinder of alternative causes of action? o Yes. Example is shipping of goods. First cause of action is based on breach of shipping contract. In case it is void, the alternative is to sue based on quasi-delict. If you join cause of action should it arise from the same series of transactions, or can it be totally unrelated? o Scenario 1: X versus Y (just two parties). Can join as many causes of action, even if totally unrelated. o Scenario 2: X versus ABCD (multiple defendants). Can only join the causes of action if it complies with the rule on PERMISSIVE JOINDER (series of actions arising from the same facts or law Rule 3 Section 6) o Scenario 3: XYZ against A (multiple plaintiffs). Can only join the causes of action if it complies with the rule on PERMISSIVE JOINDER (series of actions arising from the same facts or law Rule 3 Section 6) Can you join ordinary civil actions with special civil actions? o No. Can you join two special civil actions? o No. Because they have their own special rules. Can you join recovery of sum of money and ejectment?

o No. Ejectment is summary proceeding, so it has its own rules. What is the totality rule? o When all of the claims are claims for sums of money, even if one claim falls under the jurisdiction of the MTC but the rest may fall under the RTC, what controls is the sum of all claims. o But you cannot do this when not all are for sums of money. o When does the totality rule apply? 1. Single plaintiff with multiple causes of action against the defendant 2. Multiple plaintiffs with separate causes of action against the defendant join in a single complaint o Xs claims against Y are both for claim of ownership for real property: property 1 is assessed at 49K, and property 2 is assessed at 15K and both are in manila. Can X file in the RTC? No. While the total exceeds the 50K threshold in Manila, neither property falls within RTC jurisdiction so the action cannot be filed there. There is a sum of money claim and recovery of property in Cavite. Can you join the action in Cavite? o Note: sum of money is determined by amount (personal). Recovery of property is determined by location of the property (real). o N.B. as well that venue is not jurisdictional in civil cases, unlike criminal cases. Note as well that venue is waivable. o Answer: Theoretically, you can join. But the other party is expected to file a motion to dismiss on the ground of improper venue. FOLLOW THE GENERAL RULE: The higher court absorbs the claim (RTC > MTC). What is the rule on jurisdiction over counterclaims? o In the RTC, there is no limit to the counterclaim. In the MTC, the counterclaim is limited to the jurisdiction of the inferior court. o What happens to the balance? Its lost. So its better to file a separate action in this scenario. Is misjoinder of cause of action a ground for its dismissal? o No, it will NOT cause dismissal of the principal action. It is severed and these proceed with separately.

Although there can only be separate proceeding when there is separate filing. o The court is not duty-bound to proceed with it, especially when it appears that it has no jurisdiction. What is a special civil action? o Covered by special rules. Distinguish actions in rem, actions in personam, and actions quasi-in-rem: o Action in rem is one instituted against the whole world. o Action in personam is one against a definite defendant. It is intended to subject the interest of the defendant on a property to an obligation or lien. o Action quasi-in-rem When jurisdiction over the person cannot be acquired (usually, non-residents) and instead, jurisdiction over the res is acquired, although the owner is still named as defendant, unlike true cases in rem Ex. by attaching the property of the nonresident The relief granted can only be limited to the res because there is no jurisdiction to grant a personal judgment If the person appears, it becomes an action in personam. If the person does not, jurisdiction is limited to the property What are personal and real actions? o 1. Real action is one affecting title to or recovery of possession or partition, condemnation, or foreclosure of mortgage on real property o 2. Personal action covers all others Specific performance for delivery of real property is a personal action What are the tests to determine the nature of an action? o 1. Ultimate objective test If the ultimate objective is to recover real property, it is a real action o 2. Allegations and prayer test The allegations of fact and relief prayed for determine the nature of the action

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What is a local action? o One founded on privity of estates only and there is no privity of contracts What is a transitory action? o One founded on privity of contracts between the parties Atlantic Erectors: o Collection for sum of money over construction project over property. The plaintiff attempted to make an annotation of lis pendens on the title of the property. HELD: You cannot do this. This is an action in personam, not in rem, as regards the property. o A notice of lis pendens will only lie if it is a right, title, or interest over real property. Outside of this, you cannot avail of a notice of lis pendens. Diaz: o Rule 43, up to the CA. Attached duplicate of decision, but not pleadings. This is enough for CA to give due course to the petition. PDIC: o The main case is for declaratory relief (SCA). The question is whether there can be execution of such (yes). There can also be a counterclaim, even if declaratory relief is an SCA and the counterclaim is an ordinary action. Tolentino v. Natanauan: o There is no res judicata between recovery of possession and nullity of deed of sale. o Requisites of res judicata? A) Former judgment final B) Court had jurisdiction C) judgment on merits D) Identity of parties, subject matter, causes of action

Parties Who can be parties to an action? o Natural persons o Juridical persons o Those authorized by law What is the general rule?

o All those with capacity can be a party. o For natural persons, that is the age of majority. Can a six year old boy be a party? o Yes, but with assistance of parent, guardian, or guardian-adlitem. o A minor can sue, a minor can be sued if assisted. What is the rule on married parties? o Sue and sued jointly. o What are the exceptions? Judicial separation of property Abandonment Exclusive property of spouses Involving practice of profession What if the natural person is incapacitated? o Can sue and be sued, but must be assisted. o What if the person becomes incapacitated (supervening incapacity), will the case be dismissed? No. Sec. 18 provides that the court will provide assistance. When can we say that a juridical person has capacity? o Duly incorporated and registered with the SEC. [Mild segue into summons] If the defendant is a natural person, how do you serve summons? o Priority is personal service. It must be served to the persons, wherever he may be found. (Ex. The James Yap rule they tried serving it to him in Araneta) o If he cannot be found, substituted service to a a) person of sufficient age and discretion and b) residing therein. Either residence or office. What is sufficient age and discretion? Recent ruling says age of majority. Should not be a transient. Must reside therein. Can a foreign corporation sue and be sued? o If its an isolated transaction, a foreign corporation can sue and be sued. o If its doing business but not licensed, it CANNOT sue, but can be sued. o If its doing business and is licensed, it can sue and be sued. Service of summons to a domestic corporation?

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Rule 14, Sec 11: president, managing partner, general manager, corporate secretary, treasurer, in-house counsel How do you serve summons to a foreign corporation? o Resident agent one named to receive summons o Representatives and officers found in the Philippines (if it has a branch, for instance) What is a non-juridical entity? What is the rule? (Ex. Toro Boys) o No separate juridical existence. o They can be parties, as defendants, and named as such (under the name under which they are generally and commonly known). o They CANNOT institute an action as a non-juridical entity. They have to institute it individually. How do you serve summons to a non-juridical entity? o To anyone or person in charge of the office. Who are those authorized by law? Give examples. o Political parties o Labor unions o Archdiocese o Estate How do you serve summons? o Depending on the entity they have different rules. Can you serve summons to a natural person in prison? o Yes. Serve it to the warden. For public corporations? o Province executive head (governor) o City city mayor o Municipality municipality mayor Who is a real party in interest? o A party who stands to be benefitted or prejudiced by the judgment. Does the concept extend even to defendants and third party plaintiffs/defendants? What about an intervener? o The law does not limit it to plaintiffs only it uses party as a generic term, so it can encompass any party impleaded, if he will benefit or be injured. Does this concept of real party in interest apply to all cases?

No. The concept of real party in interest will only apply to private suits. o Does it apply to a taxpayer suit? No. Locus standi applies here. o Does it apply to criminal cases? [Not answered, but I think not] o What is the difference from legal standing/locus standi? This is from public suit filed by a private party. There is a broader policy concern here, even if there can be benefit or injury as well. o A Congressman does not believe in the act of the President, so he questions it as part of his legislative prerogative. Is he a RPII? No. Locus standi applies as well. Thus, differentiate RPII from locus standi: o Locus standi pertains to acts of government. By reason of this act, you suffered injury. o You do NOT use legal standing in private suits. Only in public suits. Who is a necessary party? o A) They are not indispensable, B) but ought to be joined if one needs complete determination of the case. Who is an indispensable party? o If not impleaded, there can be no final determination. o N.B. The codal does not use the word complete. So they are compulsorily joined. What if there is a suit against joint debtors? o The other parties not sued are necessary parties. o Can you sue one of them only? Yes. The court can issue a valid judgment, although not complete. o Can you then proceed against the other one, though not impleaded at first? Yes. What if there is a solidary obligation, not joint? Ex. X and Y solidarily owe Z PHP 100,000. Z sues. o Neither necessary nor indispensable. o Can you sue X only? Yes.

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Can there be judgment? Yes, because the obligation is joint and several (solidary). o Can you sue Y later on, having recovered from X? No, because you recovered already. o Can you sue at the same time? Yes. The case can proceed against either, or both. There is an action for recovery of title AND possession. X holds title; Y has possession of the property. The action is just for recovery of title. Can you sue X? o Yes, because X is the proper party. Same facts. Can you sue Y for recovery of title, without suing X? o No. Y is a mere possessor. The court cannot render judgment without impleading X. X is an indispensable party in this case. What is the failure of failure to implead? o If it is a necessary party, the general rule is that failure to implead is non-prejudicial. There is no waiver of right to implead. BUT if there is an order to implead by the court and there is failure to comply, there is a waiver of claim. o If it is an indispensable party, the court should order that the indispensable party be impleaded (Domingo). If despite this order to implead, the plaintiff did not comply, the case should be dismissed. o What if the court did not notice non-joinder, and thus did not order to implead the indispensable party, and renders a decision? The judgment is null and void. What is a class suit? o One where the subject matter of the controversy is of common or general interest to many persons so numerous that it is impracticable to join all as parties o What is the rule? The court will allow a number of them sufficiently numerous and representative to fully protect the interests of all to sue or defend on behalf of all o What is the right of an individual party in interest? May intervene to protect his individual interest

When is there substitution of parties in a civil case? There are three. o 1. Death Who should die? Any party. The law does not distinguish. This is the most common. o 2. Change of holder of public position (death, resignation, removal, cease to hold position) This is a very limited application, since it just applies to public officers. o 3. Transfer of interest What are the requisites of substitution by death? o 1. A party dies o 2. The pending action is not extinguished by reason of death (IMPT) o Why does the law need to say this? Because there are actions that are extinguished by death. Examples are actions that are purely personal to the party Give examples. Ex. Contract for Michael Jackson to sing in a party. Ex. Receipt of a widow of support. When she dies, the support from widowers estate is gone. What is the duty of the counsel after death? o 1. Give notice of death of the party within 30 days. When is the 30 day period counted? From the FACT of death, and not from the knowledge thereof. o 2. Give names and addresses of the legal representatives Who should be legal representatives? Legal heirs, administrator, or executor N.B. The law provides for legal heirs, because there is procedure to be done before appointment of administrator or executor (ex. probate of the will for the latter).

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o 3. Court orders substitution and for the substitute to appear There is action of A and B against C, D, and E. What if E dies? o The counsel of E names a substitute. The court will then act accordingly. Same facts. However, there was no successful substitution (i.e. the duties were not complied with). What happens? o There can be a valid judgment, but only against C and D. o There can be no valid judgment against E. Same facts. No substitution of E either. But C and D are incidentally, heirs of E. Can there be a valid judgment as to C and D? Is there a need for substitution? o There is still a need for substitution, even if C and D are already parties. That C and D are incidentally Es heirs as well does not change the result. o This is the Brioso case. There is valid judgment only against C and D. It is wrong to say that C and D automatically substitute for E. There are other heirs who are affected by this improper automatic substitution. o What is the effect if E is necessary? If E is indispensable? Relate the provisions above. If necessary, you can subsequently file a suit against Es heirs to complete the judgment. If indispensable, the judgment is null and void, even against C and D. What if no legal representative is named by the counsel for the deceased party or the one named fails to appear? o The court may order the other party to procure the appointment of an executor or administrator for the estate of the deceased. o The costs for appointment may be recovered by the appointing party. What are the requisites for substitution of public officer? o 1. Removal/death of public officer and appointment of successor within 30 days unless otherwise provided o 2. Successor adopts, continues, or threatens to continue the action sued against o 3. There is substantial need to continue the action Substitution is not automatic. What are needed to be done to substitute the new public officer? o 1. Give notice to the new public officer o 2. Opportunity to be heard for the new officer

Mere fact that he is inclined to continue the action of the predecessor is not enough Give an example of transfer of interest. o A sues B for judgment for sum of money based on contract. B assigns the contract to C and C accepts. o Can the case continue against B despite the transfer of interest? Yes. o Can the court order that C be impleaded? Yes. But there is no substitution here. C is just joined. o How then can there be substitution? The court has to order a substitution, not mere impleading. BOTTOM LINE: there has to be a court order. In case of death of a defendant in a contractual sum of money case, will there be substitution? (VERY IMPORTANT) o Section 20. It will NOT go to the heirs, but it will continue against the estate. (Remember Succession!) o This is the special rule for contractual sum of money cases. o Ratio for this? Because you ultimately deal with the executor or administrator anyway. But its wrong to say there is substitution, because the law does not mandate it. o This position is further supported by Rules 86 and 87. o What are the requisites for this rule to apply? 1. The DEFENDANT must die 2. It must be a sum of money case based on contract o What if the plaintiff dies? The general rule will apply, even if its a sum of money case. Indigents Algura v. Local Government of Naga: Resolves the apparent conflict between Rule 3, Sec. 21 and Rule 141, Sec. 19. o If the indigent fits within the parameters set by Rule 141, Sec. 19, then the court must declare him to be an indigent. What is the Rule 141 requirement? Gross income + family income does not exceed twice of monthly minimum wage

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And owns real property whose FMV is less or equal to PHP 300K o If he doesnt, he falls under Rule 3, Sec. 21 and must apply for indigent status. (Indigency test) Here, the court exercises discretion as to whether you are an indigent or not. o So can a person owning real property with FMV of PHP 300,001 be declared an indigent? Yes, but under the indigency test. If you are declared an indigent, you do not pay filing fees. But what happens when there is a judgment? o There is a lien, as regards filing fees. What is the rule on stenographic notes? o It is free. There is no lien on the judgment. What happens when the court finds out you are not an indigent? o The court can require you to pay. o What if you refuse to pay? The court can order execution. o What if you fail to pay or ignore the execution? The court can dismiss the case, for failure to comply with an order of the court. When does the court in its discretion require the Solicitor General to be heard in person or through a representative? o When the action involves validity of a law, treaty, ordinance, EO, PD, or rules and regulations.

Venue What is the appropriate venue for: o 1. Real actions where the real property is found o 2. Personal actions residence of (principal) plaintiff, residence of (principal) defendant, or wherever a non-resident may be found o 3. Against non-residents and (a) the action affects the personal status of the plaintiff or (b) any property of the defendant in the Philippines Residence of plaintiff Or where the non-residents property may be found N.B. I suppose this pertains to the two situations, respectively

Do not make the mistake of confusing venue and jurisdiction in civil procedure. Jurisdiction is the power given by law to hear, try, and decide cases. Knowing what court is one thing, but knowing where to file it is different. There was an agreement to develop a piece of land in Tanay, Rizal to become a memorial park. The duty of the owner (living in Quezon City) of the piece of land is to provide property. The duty of the developer (located in Pasig) is to dig up the land, put drainages, etc. The owner of the land died, and the heirs are now substituting for their father. They want to rescind the agreement to develop. Where do they file? o There are two steps in venue problems. First, determine: is it a real action or a personal action? Its a personal action. It involves rights and obligations of parties, although the subject matter involves land. o Where do you file it? At the option of the plaintiffs. Either in their principal residence (Quezon City) or the defendants (Pasig) o Which court has jurisdiction? RTC, because it is an action incapable of pecuniary estimation (rescission) Aileen Marcos case: o In cases where there are several plaintiffs and defendants, the codal provides the word principal before plaintiff and defendant, so that the plaintiffs will not file the case before farflung or inconvenient areas. o In this case, Aileen Marcos is filing a case to enforce a trust, and some nominees live in Batac, Ilocos. Marcos lives in Makati. She filed in Batac. o HELD: Should have filed in Makati, because she is the principal plaintiff. Where do you file an action for extra-judicial foreclosure? o Extrajudicial foreclosure of mortgage is NOT a judicial action. Its not covered by the Rules of Court, but Act 2135. For purposes of EJ foreclosure, it should be filed where the property is located. o But the mere filing and payment of fees (for multiple properties in various areas) can be paid in one office, as long as it can be

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established that it covers all areas. But the actual sale will only be done in the place where the properties are located. What about judicial foreclosure? o Rule 68 does not provide for venue for this SCA. But it is filed where the property is located. o But if it is for collection of a sum of money, file it as a personal action. Where do you file an action for nullity of marriage? o RTC where the plaintiff resides, where the defendant resides, or where their conjugal home is located (special rule in Family Courts issuance) What should be your first consideration? What is the general rule? o Rule 4 (rules of venue) applies in general, UNLESS a specific law provides otherwise. On specific venues, as provided by law o Give an example. Actions for Quo warranto if the Solicitor general commences it, in can be in the SC, CA, or RTC of Manila o What if you want to file an action for perpetuation of testimony? This is covered by Rule 24 (deposition before action or pending appeal). Special rule: Place of residence of any expected adverse party or defendant o What about adoption? Where the prospective adoptive parents reside o What about probate? Where the deceased last resided at his time of death o Writ of habeas corpus on residence of minors? General rule: RTC where the minor is supposed to be found Thornton: But if unknown or cannot be found, in the CA or SC Can the parties stipulate on venue? o Yes, they can. o In an ejectment case, the property is located in Cebu. Plaintiff resides in Makati, defendant in QC. Where do you file it?

In the MTC of Cebu. Residence in general does not matter. o What if I file it in Makati? Yes. But what will you expect? Motion to dismiss on the ground of wrong venue, coming from the defendant. But what if there was no motion to dismiss, and in the answer, there was no allegation of improper venue? There is waiver on the rules of venue. Remember Rule 9, Section 1. This is the general rule on waivers and objections on grounds not raised in an answer or MTD. Failure to raise these grounds in MTD or answer is a waiver. Exceptions: o 1. Lack of jurisdiction over the subject matter o 2. Litis pendentia o 3. Res judicata o 4. Statute of limitations What is the distinction that you have to make as to stipulations? o If there are no words of exclusivity, then it is only an additional venue. o If there are words of exclusivity (ex. can only be filed in Cebu, waiving all other venues), then you can only file it there. o (PBCom v. Lim is an example of a case with restrictive words) In this case, the stipulation on venue in the principal agreement (PN) applies to the accessory contract, which is the surety agreement which cannot exist without the prior agreement. What if there was no Motion to Dismiss and no answer filed? Apparently, the defendant did not notice the improper venue, or he decided to waive it. Can the judge later motu propio dismiss the case after noticing that the venue is wrong? o No, he cannot motu propio dismiss the case on the ground of improper venue. (Gumabon) Distinguish between wrong venue and lack of jurisdiction (ex. wrongly filing an ejectment case in the MTC.) Here, while the rules on summary procedure include MTD as a prohibited pleading, an exception is lack of jurisdiction (contra. wrong venue). What is the local version of forum non conveniens?

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Prohibited forum shopping (Read Bank of America)

Summary procedure 1. Filing of the complaint o In summary procedure, after filing the complaint, what can the court do? A) Dismiss the case outright B) Issue summons o What is the responsive pleading? Answer. Can you file a MTD? In general, no. It is a prohibited pleading. When do you file the answer? 10 days, not the usual 15. o Can the plaintiff file a reply? No. Its also a prohibited pleading. o What if there is no answer? The plaintiff can file a motion for the court to render judgment. A motion to declare the defendant in default is a prohibited pleading. Just ask the court to render judgment. o After the filing of the last pleading, move on to next stage. o N.B. all pleadings (complaint, compulsory counterclaim, crossclaim, answer) must be verified 2. Preliminary conference. o Take note, in SP, it is NOT pre-trial but preliminary conference. o When does the court set this? Within period of 30 days. o What happens here? The parties can compromise, identify issues, etc. o Can the court render a judgment based on what was presented in the preliminary conference? Yes, the court can, if it is convinced at this point in time. o Assuming there is no judgment in steps 1 and 2, move to the next step 3. Submission of judicial affidavits or position papers

Is there a hearing in summary proceeding or trial? No hearing, no trial. o Within how many days do you submit affidavits? Within 10 days from the receipt of the order (record of preliminary conference) o What is required for the affidavits submitted? Must be within personal knowledge of affiants; or else, expunge the affidavit and subject the party or counsel to disciplinary action o Can the court render judgment? General rule: 30 days from the filing of the last pleading NOT submission for resolution, but submission of the last pleading Exception: 15 days, if the court asks for further clarificatory documents What are the prohibited pleadings? o [Standard pleadings] o 1. MTD Except lack of jurisdiction over subject matter Or failure to refer to lupon o 2. Bill of particulars o 3. Reply o 4. Motion to declare in default o 5. Memoranda o [Adding other people] o 1. Interventions o 2. Third party complaint o [Remedial pleadings] o 1. MR or MNT o 2. Petition for relief from judgment o 3. Petition for certiorari, mandamus, prohibition against interlocutory orders of the court o [Extensions] o 1. Dilatory motions for postponement Does this cover motion for cancellation of hearing?

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If is not dilatory. But be careful with this, because the judge has to determine first if it is dilatory. o 2. Motion for extension of time Jalique v. Dandan: o This is a case where the respondents filed a joint counter affidavit in an ejectment case, rather than a response. The MTC decided in favor of plaintiff. RTC affirmed. CA moved to have the case remanded to MTC for re-hearing. o HELD: Valid action by CA. The court interpreted the rules on summary proceeding liberally here, because there was presence of a responsive pleading anyway and there was challenge of the material allegations of fact in the complaint. So the MTC should have considered it. Bonifacio v. Bellosillo o The judge was sanctioned here, because there was no answer, and instead of promulgating judgment, he still called for a preliminary conference. Pascual v. Jovellanos o The defendant filed a Motion to Strike Out instead of an answer, which was, in reality, a motion to dismiss. The judge should not have granted this. Boy v. CA: o May the MTC pass upon questions of ownership in an ejectment case? YES, only provisionally and for the purpose of resolving forcible entry/unlawful detainer cases. This is a power granted by BP 129. Macasaet v. Macasaet: o In the preliminary conference, representatives appeared on behalf of the original parties (as attorneys-in-fact). This special authorization is a valid cause for someone else to appear in the plaintiffs or defendants behalf. o What happens when the plaintiff is absent in preliminary conference? Case is dismissed o What happens when the defendant does not appear? As if he didnt file an answer. The court can render judgment.

o o

What is the stopgap? Have an explanation OR send a representative Where does this rule come from? Provision on authorization does not appear in the rules on summary procedure. But the SC applied to Rule 70 suppletorily, the rules of Rule 18 on pretrial and appearance by representative.

Small claims What should a plaintiff file? o 1. Statement of claim o 2. Together with certificate of non forum shopping o 3. Authentic copies of document from which the action stems from (actionable documents) Who signs the statement of claim? o The claimant. No need for the lawyer. o [Atty. Salvador: maybe this special rule is for bar flunkers to practice, because the claimant still needs to file certain documents he may not know how to execute] What happens after? o Court files notice for defendant to submit response o Defendant has 10 days to file a response o What are the formal requirements? There is already a form provided for the plaintiff and defendant to fill in. They just need to attach documents. o Can there be a counterclaim in a small claim action? Yes. As long as within jurisdiction of the court, and arising from the same transaction, and does not require joinder of third parties. And then? [review/cross-check these rules] o The parties can decide for amicable settlement or judicial dispute resolution (JDR) o Can a claimant apply as an indigent litigant? Yes. (Aldura) o Will there be presentation of evidence? Yes, but it is not a strict and formal trial. You can only present the evidence attached to the claims.

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Is there a preliminary conference? None mentioned. o Do the parties have to appear? Yes, or at least their representatives. Failure for the plaintiff to appear leads to dismissal without prejudice of the claim. Failure for the defendant to appear has the same effect as not filing a response. What happens after JDR? o In a multi-sala court, the executive judge refers to the pairing judge for hearing and decision within 5 working days from referral o In a single sala court: Pairing judge hears and decides the case in the court of origin within 5 working days from referral by JDR judge Are there prohibited pleadings? o Same as summary procedure o Except in MTD, only lack of jurisdiction over the SM is the exception. o Why is failure to refer to the lupon not an exception? Because the claim is below P100K (no barangay conciliation required) Can it be appealed? o No. By express provision, it is final and executory. o What then, is the remedy? Rule 65 (petition for certiorari) because there is no plain, adequate, speedy remedy

Pleadings What must be in the complaint? o Claims a cause of action o Must contain allegations brief and concise statement of ultimate facts, devoid of evidentiary matters You can also allege as to fraud, mistake, malice, illegality, condition of the mind, etc. As to matters of fraud, how must it be alleged? o With particularity As for mistake, how must it be alleged? o With particularity

If its a condition of the mind (malice, intent, knowledge, etc.)? o Generally You can also base your claim on an actionable document. How to do you allege it? o 1. You can attach or append the document To show the court that this is where your cause of action arises o 2. You can reproduce the contents of the document in the pleading en toto (But in practice, just always append anyway) How do you deny an allegation under an actionable document? o Specifically denied, under oath o What is the exception to the oath requirement? 1) When the adverse party is not a party to the instrument 2) When there is an order for inspection and it is refused What is the effect of failure to specifically deny under oath an actionable document? o It is an admission ONLY as to the genuineness and due execution of the actionable document But what about the rights and obligations of the parties arising from that document? o It is up to the court to determine it. What is the period for a motion to strike out a pleading or a matter contained therein? o 1. Before responding to a pleading o 2. If no responsive pleading is allowed, then within 20 days of service of that pleading upon him o 3. Upon courts initiative, at any time o What are the grounds to strike out a matter from a pleading? 1. Sham or false 2. Redundant, immaterial, impertinent 3. Scandalous What is the period to file an answer? o 15 days after service of summons o Could it be 30 days after receipt of summons?

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For foreign corporation and service is done to government official designated by law What is the period to answer an amended complaint? o A. If amended as a matter of right, 15 days from service of copy of the amended pleading (N.B. not from summons anymore since the defendant has already been summoned) o B. If not a matter of right, 10 days from notice of order admitting it N.B. This is not from receipt but notice of admission because the proposed amended pleading is attached to the motion to amend the complaint anyway. What if there is no new answer filed? o The prior answer serves as the new answer too if no new one is filed What are the defenses available in answer? o 1) Affirmative defense If you only hypothetically admit, without raising any defense, what happens? In this case, there is no more issue. This will lead to a judgment on the pleadings (Rule 34) This occurs when the answer does not tender an issue or admits the material allegations o 2) Negative defense Specific denial of facts alleged essential to the cause of action. What are the kinds of specific denial? 1) general denial 2) specific denial 3) disavowal of knowledge (lack of knowledge and belief to form a specific denial) o What is a negative pregnant? A denial which implies its affirmative opposite by seeming only to deny a qualification of the allegation and not the allegation itself (Ex. I have never consumed cocaine while on duty implies the defendant has consumed cocaine otherwise)

Is the counterclaim or cross-claim in a separate pleading? o No. What is a compulsory counterclaim? o Arises out of the transaction constituting subject matter of the action and does not require the presence of third parties of whom the court cannot acquired jurisdiction What is a permissive counterclaim? o Arising from an event unrelated. What is the period to answer a counterclaim? o 10 days o (In practice, you only answer a permissive counterclaim. In practice, a compulsory counterclaim is not answered.) What is the remedy of the other party if the facts from which the counterclaim arises from only came about or ripened after the answer has been filed? o With leave of court, may be presented as a counterclaim (or cross-claim) by supplemental pleading before judgment What is a cross claim? o Made against a person/party on the same side. Can there be a counterclaim defendant cross claim? o Yes. The counterclaim defendant is the original plaintiff. He can file a cross claim against a co-party. Is there a period to answer a cross claim? o 10 days Do you need leave of court to file a counter or cross claim? o No, whether it be a permissive/compulsory counterclaim or a cross claim, no. For a third party complaint, do you need leave of court? o Yes. You cannot just file a third party complaint. o Who is usually the third party plaintiff? The defendant in the main case, who feels that he should file a complaint against someone that court has yet to acquire jurisdiction from. This is the reason why there is need for leave of court. You need to have the third party impleaded. Why would you want a third party complaint? To contribute or indemnify

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Classic case: car crash a hit b hit c. C sued B. B sued A for indemnification. Subrogation Any other similar ground What is the period to answer a third party complaint? 15 days, because it is treated as an entirely new complaint o

Is the reply a mandatory pleading? o No. What is the period to file a reply? o 10 days. What do you do in a reply? o To controvert the new matters raised in the answer What is the effect of failure to file a reply? o All new matters stated in the answer are deemed controverted What happens after answer, etc? o Pre-trial Three important things: o Signature, verification, and CNFS What is the effect of a lawyer affixing his signature in a pleading? o 1. He has read the pleading o 2. To the best of his knowledge, the information is correct o 3. The filing of the same is not for the purposes of delay There are some pleadings that are left unsigned. What happens? o It has no legal effect at all. o Is there a way to cure it? If counsel can show it is due to mere inadvertence and not for delay o Will the court just give effect to the pleading or will it still require actual signing? [Didnt answer] If a lawyer changes his address, what is his duty? o Inform the court. Failure to do so may lead to disciplinary action. What are the contents of the verification?

Affidavit stating: 1. That the affiant has read the pleading 2. The allegations are true and correct based on personal knowledge or authentic records Based on personal knowledge, not information and belief or knowledge, information and belief Must it be under oath? o Yes. Is it mandatory? o No. Only when the law requires you to verify. o Give examples: Rule 45 (Petition for review on certiorari) Rule 65 (Petition for certiorari) Rules 57-61 (Provisional remedies) Is it jurisdictional? o No. Failure to attach is not fatal. o But why do the SC and CA dismiss cases for failure to attach verification? Although it can be cured, the court may dismiss a pleading for failure to comply with procedural requirements. Who signs the verification? o The party filing the pleading. Can the lawyer sign it? o General rule, no. Unless there is some compelling reason. o For example, the partys father is to be buried on the day of filing of the petition the court allowed it. o Also, the distance of the petition from the counsel (ex. the petitioner is in the USA and the counsel is in Manila, and there are only 15 days to file.) Can a minor sign? o Must be assisted. Can a married person sign by himself or herself? o One spouse is enough, but only if there is common interest. (N.B. but see note below) For co-owners or those in the same residence? o Signature of one is enough if there is common interest. (N.B. but see note below)

o o o

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TAKE NOTE: The key when it comes to multiple parties, all of them have to sign. However, if there is a common interest among the parties, a signature of a number of them may be enough. o BUT in practice, do not take chances. When is a verified pleading/motion needed? o 1. Rule 24 (depositions pending action/depositions pending appeal) o 2. Rule 38 (petition for relief from judgment) o 3. Rule 42 (petition for review: RTC to CA) o 4. Rule 43 (appeal from quasi-judicial agency to CA) Also: exemption from payment of lawful fees under Rule 43 o 5. Rule 45 (petition for review on certiorari) o 6. Rule 47 (annulment of judgment (CA)) o 7. Rule 58 (application for preliminary injunction) o 8. Rule 59 (application for receivership) o 9. Rule 61 (application for support pendente lite) Also: comment on the application for support pendente lite o 10. Rule 64 (review of judgments/final orders of COMELEC and COA) o 11. Rule 65 (petition for certiorari, prohibition, or mandamus) o 12. Rule 66 (quo warranto) o 13. Rule 67 (expropriation) o 14. Rule 70 (forcible entry and unlawful detainer) N.B. covers all pleadings, including answer, compulsory counterclaim, and cross-claim o 15. Rule 71 (petition for indirect contempt) o 16. ROP of envi cases, Part II: a) civil complaints, b) answer o 17. ROP of envi cases, Part III: a) petition for writ of kalikasan, b) return to writ of kalikasan, c) motion for ocular inspection or production/inspection o 18. Rule 93 (appointment of guardians) o 19. Rule 95 (petition of guardian to sell or encumber property of the ward) o 20. Rule 97 (petition to examine competency of a ward, for termination of guardianship) o 21. Rule 102 (application for writ of habeas corpus) o 22. Rule 103 (change of name)

o o o o

23. Rule 108 (cancellation or correction of entries in civil registry) 24. Habeas data: a) petition for writ, b) written return by respondent, c) return of service by officer executing judgment 25. Writ of amparo: a) petition, b) written return by respondent, c) motion for inspection, d) motion for production, e) 26. Rule 126 (Sec. 26: inventory of things seized under warrant)

CNFS: When is a CNFS required? o For a complaint or other initiatory pleading o So a compulsory counterclaim does not require a CNFS What about a juridical entity? Who can sign? o [Anyone, as long as authorized by a board resolution] What are the contents of the form? o 1. Plaintiff/principal party shall certify under oath that he has not filed a similar complaint involving the same issues in another court, tribunal, QJ agency o 2. If there is any other pending claim, provide status o 3. If he learns about similar action, report fact within 5 days to the court Why does the law require that it is the party that signs? o Because it is only the party, and not even the lawyer, that knows whether there is another action. For those with no separate juridical existence, who signs? o All the parties, since there is no juridical personality. What is the effect of absence of CNFS? (Note: non-compliance is different from absence) o It will be dismissed. It can be re-filed because it is without prejudice. Can it be amended to cure? o No, the defect cannot be cured by an amendment. Just re-file. What is the effect of non-compliance? (Note: this occurs when there is a CNFS, but you did not respect your commitment under the CNFS) o 1. Dismissal of the case o 2. Indirect contempt (Failure to comply with order or process of court)

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3. Administrative and criminal sanctions (since you lied under oath) What if there is willful and deliberate forum shopping? o (Meaning, its not only false, but you also deliberately disregard it) o 1. Dismiss the case with prejudice What kind of dismissal? Summary dismissal cannot contest o 2. Placed in direct contempt o 3. Administrative sanctions BPI v. CA o There was a CNFS filed in the first place. What was not attached was the board resolution showing the authority of the Vice President to sign the CNFS on behalf of the company. This authorization was submitted on the MR. o NOTE: There was a valid CNFS. There was liberal interpretation of this provision for these reasons. Donato o Here, the lawyer signed the verification, not the party. This was validly excused by the court since the party was in the US, and could not sign the pleading in time given the 15 day period. There was physical impossibility. o BUT as a general rule, the lawyer cannot sign. Young v. Seng o There was no forum shopping, because the first case was dismissed due to lack of cause of action. When a case is dismissed because of that, it is without prejudice, and that party can file the same case again. o Failure to disclose this fact is not a violation of the CNFS. OSM Shipping o Requires a duplicate original or CTC for the decision being appealed (here, NLRC decision) and not the prior one (Labor Arbiter in this case) Tan v. Kaakbay o No need for a CNFS for a compulsory counterclaim New Sampaguita o There was no forum shopping here, because the first case questioned whether there can be a writ of execution when the parties agreed to compromise in the first place, when the court

dismissed the initial case. The second case was whether the court approved the compromise agreement in the first place. These are different. Solar o Is the rule on personal service mandatory? Yes. The rule is priority is by personal service. If you cannot do it by personal service, you can do it by registered mail, but you have to make an explanation. In this case, it was made by registered mail and there was no explanation. For this reason, the decision of the court to allow it was based on its reasonable discretion. BUT this is not the rule. What are the material dates here? Period only commences to run from date of receipt of the decision Date of filing of the MR Date of receipt of denial of the MR

Musa o

Amendments and supplements There is amendment for civil cases and there is amendment for criminal cases. For civil cases, amendment may either be: o 1) As a matter of right o 2) With leave of court When is it a matter right? o Before an answer or within 10 days of service of reply (if the reply is the one being amended) o What do you need to file? NOTICE to amend When do you need leave of court? o After an answer has been made o What do you need to file? Motion to amend For criminal cases, the reference point is not an answer. Instead, it is plea. o Before plea, can you amend? Yes, whether as to matter of form or substance

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After plea, can you still amend? Yes, but only as to matters of form, for as long as it will not prejudice the rights of the accused Dont forget that last bit! What is the test when it will prejudice the rights of the accused, even if its a matter of form? If the original defense of the accused will not change. What is amendment to conform to evidence? o This is section 5 of Rule 10 o Allegations are found in the body of the complaint/answer. What is alleged must be proven. o If the evidence you presented went beyond the allegations, you may file a motion to amend the pleading to conform to evidence o What if evidence is objected to on the ground that it is not within the issues in the pleadings? 1. The court may sustain the objection 2. The court may allow the pleadings to be amended if the ends of substantial justice will be served There are two kinds of amendments to conform to evidence. What are these? o First kind no objection on the part of the other party. For this reason, it will be allowed even after judgment. o Second kind if the other party objects, the amendment is left to the sound discretion of the court. Can you amend a complaint when it originally has no cause of action? o If in the first place there is no cause of action, no amendment will cure such an absence. o Can the court order an amendment even if there is no application to amend? 1. Yes, if it is a mere formal (typo) amendment 2. For bill of particulars, the court can either order compliance OR an amendment 3. Motion to dismiss the court can either grant, deny, or order an amendment There was an amendment of an original complaint, which was the basis for the issuance of summons. If the original complaint is

amended and that is granted by the court, is there a need for issuance of new summons? o No, if you already lawfully obtained jurisdiction over the defendant through summons or voluntary appearance. o It is a question of jurisdiction over the person, not a question of amendment. o HOWEVER, if there are additional defendants, new summons must be served to them. What is a supplemental pleading? o A pleading filed in addition to a prior one that has been filed, pursuant to new transactions, occurrences, or events that have arisen. o Can there be a supplemental complaint? Yes o Can there be a supplemental answer? Yes o Can there be a supplemental reply? Yes o Can there be a supplemental petition? Yes So what is the general rule? o You can file a supplemental pleading as long as there are new transactions, occurrences, or events that occur after the filing of the first pleading. o What is the exception? Usually you cannot do this to the Supreme Court, because you cannot file something to it unless it asked for it. You would be asked to explain why you are submitting such. What is the difference between amendments and supplements? o Amendments pertain to events, transactions, or occurrences that exist during the filing of the original pleading, but were not placed in the pleading. There was just an omission. May be filed without leave of court (before responsive pleading) o For supplements, the events, transactions, or occurrence only arose after the filing of the original pleading. Always with leave of court What is the period to respond to a supplemental pleading?

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10 days from notice of order admitting the supplemental pleading

Default N.B. 1: What is the rule on objections? o General rule: all objections on grounds not raised in an answer or motion to dismiss are deemed waived. o What are the exceptions? 1. Lack of jurisdiction over SM 2. Res judicata 3. Litis pendentia 4. Prescription o What is the fifth exception provided by jurisprudence? 5. Lack or absence of cause of action This is different from Rule 16 (that the pleading states no cause of action) N.B. 2: What is the rule on failure to allege a counterclaim? o Any compulsory counterclaim or cross claim not set-up: barred forever o In special proceedings a claim against the estate must be made in the period provided for in the notice. Otherwise it will be forever barred. What is the exception? If there was a suit started by the estate against you, the claim can be raised as a counterclaim. N.B. 3: How many kinds of default do we have? o 1. In actions in rem, there is a general order of default. There are no defendants, so notice is made to the public that all oppositors have to come forward and object. Otherwise, forever barred. o 2. Failure to attend during pre-trial Called as in default in the 1964 Rules of Court If the defendant fails to attend, the plaintiff can present evidence ex parte o 3. Failure to file answer What are the requisites to declare the other party in default? o 1. Did not file answer o 2. There is proof of such failure You have to show the return

o 3. File motion with court, with notice to defending party Upon order of default, what are the options of the court? o 1. Can render judgment No need to present evidence ex parte anymore in this case. What is the extent of relief that can be awarded by the court? Not exceed the kind or amount from that prayed for Cannot award unliquidated damages N.B. This is a new provision introduced only in the 1997 Rules of Civil Procedure. This has not been asked in the Bar examination yet. So be careful. o 2. Can require submission of evidence Can delegate this to the clerk of court How can you set aside an order of default? o 1) File a motion on any of these grounds: 1. Fraud 2. Accident 3. Mistake 4. Excusable negligence o 2) It has to be under oath o 3) State that you have a meritorious defense, without necessarily giving an answer o What kind of fraud is needed? Extrinsic fraud. o Is the fraud needed here the same fraud needed for motion for new trial, petition for relief from judgment, and motion for annulment of judgment? YES. For all of these, you need extrinsic fraud. How do you set aside an order of as in default [or allowance for plaintiff to present evidence ex parte for the plaintiff]? o Saguid: Remedy is to file an MR or relief from order of default also on the ground of FAME o Do you have to add that you have a meritorious defense? No need. Youre already in pre-trial. Can there be partial default? o Yes.

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In a case where you file a case against A, B, C, D, and E. E did not file an answer, while A to D did. Will A to D be allowed to present evidence? Yes. o Will E be allowed to present evidence? No. He is in default. o Can A to Ds evidence be used against E or in favor of E? Yes. In fact, E can still win the case along with the others. Where can there be no order of default? o 1. Nullification/annulment/legal separation o 2. Summary Procedure N.B. When there is failure to file answer, there can be judgment rendered by court. o 3. Certiorari, Prohibition, etc. Some SCAs require a comment, so there can be no declaration of default Are there SCAs where there can be declaration of default? Yes, like interpleader where the special rules are deficient so there is suppletory application of the ROC Cerezo v. Tuazon: o Order of default failure to submit an answer, so the defendant is declared in default o Judgment by default after the defendant is given notice of the court processes, the court renders a decision without hearing defendants defense, which he lost o Remedy for an order of default? Motion to set aside or lift an order of default based on FAME (under oath, and you have to show you have a good defense) SSS v. Chavez: This must be accompanied by a verification (under oath), affidavit of merit (that you have a good defense), and notice of hearing. If this is missing, the motion is lost. o Remedy for a judgment by default? 1. MR or MNT (FAME) within period for filing an appeal 2. Petition for relief from judgment

After the reglementary period for appeal; i.e. when there is entry of judgment Period: 6 months from entry of judgment AND within 60 days from knowledge 3. Rule 65 certiorari If there is GADALEJ Remington Steel: o When there are multiple defendants, even if one has already answered, you may amend the complaint as a matter of right as to the other since there is no defense yet that would be affected or altered by the amendment. Philippine Export and Foreign Loans: o When it is a dismissal without prejudice, appeal is not a remedy. Your remedy is to re-file a case or file for a petition for certiorari. o Amendment to conform to evidence What if it was not allowed, but the evidence was proven, can there be a valid judgment based on that evidence? Yes. It is valid, even if it is not consistent with what was alleged.

Bill of particulars Can there be Bill of Particulars in criminal cases? o Yes. Rule 116, Sec. 9. Only four things to remember in BOP: o 1. What is the definition of BOP? o 2. What is the period to file a BOP? o 3. What is the action taken by the court in BOP? o 4. What is the consequence of failure to comply with order to file a BOP? When you file for a BOP, what do you want to achieve? o A more definite statement of facts that appear in the complaint that are not averred with sufficient particularity o You are to identify the defects and the details desired. Can you file a motion for BOP after an answer has been filed? o No more, because issues have already been joined. What is the effect of filing a motion for BOP on the period?

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The period is interrupted upon filing, but you always have at least five days to file the answer after. Deadline to file an answer is in 15 days. You received the complaint December 1. You filed a motion on December 5. How many days do you have? o TWELVE, not eleven. You dont count the day causing the interruption. [VERY IMPT] o This is the same way you count a motion to dismiss. [Same facts] If you filed a motion for bill of particulars on December 14, the motion is interrupted. How many days do you have? o You still have Five days. What can the court do? o 1. Grant motion o 2. Deny it o 3. Allow the parties to be heard What if the court grants the BOP? o The party directed to do so must comply within 10 days What action can the court take on a BOP if you fail to comply? o 1. Motion to strike out o 2. The case can be dismissed (Virata v. SB) Rule 17, Sec 3: non-compliance with court order What if the person fails to file an answer in the time left? o Will be declared in default

REGISTERED MAIL: Pay for registry receipt and you have to accomplish a return card What is the proof that you personally filed? o 1. Primary: if the pleading is found in the records of the court. o 2. If it does not appear, you can present the received copy What is your proof of registered mail filing? o 1. Registry receipt o 2. Affidavit of the person mailing o 3. Return card

Service What are the modes of service? o 1. Personal o 2. Registered mail o 3. Ordinary mail What does rule 14 cover? o 1. Party serving to another party, o 2. Party serving to court, o 3. Court serving notices (section 9) If the person to whom you are serving is not available, then how do you file substituted service? o Delivery to the clerk of court with proof of failure of both personal service and service by mail. N.B. This is different from substituted service of summons, which is to a person of suitable age and discretion residing in the same residence o There should be proof of both failure of personal service and service by mail. What is completeness of personal service? o Actual delivery What is completeness of registered mail? o Actual receipt or 5 days after first notice of postmaster o whichever comes first What is completeness of ordinary mail? o 10 days after mailing What are the proofs of personal service? o 1. Written acknowledgement of the party served o 2. Affidavit of the person serving

Filing and service of pleadings Filing What are the modes of filing? o 1. Personal o 2. Registered mail Can there be filing by ordinary mail? o None. Because here there is no way the court can find out when you filed it. o But there can be service by ordinary mail. What are the requirements for personal and registered mail? o PERSONAL: Stamped, dated, and signed by the clerk of court.

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3. Official return of server This refers to service by the court What are the proofs of registered mail? o 1. Registry receipt and affidavit of one who mailed o 2. Return card or unclaimed letter with certified/sworn copy of notice given by the postmaster to the addresee What are the proofs of ordinary mail? o Affidavit of person serving What if I used registered mail, but I got back the return card ALONG WITH the document itself (showing it is unclaimed). What do you do to prove delivery? o You have to file the return card plus the unclaimed document, plus before you file, secure a certification from the post office. Take note that a return card is required by law to be filed, but in practice, we do not. What is the priority of service? o Personal service is always preferred o What is the effect of filing by registered mail? Put an explanation why you did not serve it through personal service o What if you dont comply? As if the pleading was not filed. Service of pleadings should be made to whom? o To the counsel, if the party is represented by counsel. What if service was made to a security guard on the ground floor of a condominium building and your office is on the 3oth floor? o You cannot. You have to serve it to counsel. What is Lis Pendens? o In an action involving right, title, or interest over a property, you annotate it on the title of the property. I file a case in the bureau of lands to declare null and void a title. Can this be subject to a notice of Lis Pendens? o No. This is a quasi-judicial action. Notice of lis pendens only applies to judicial cases, not quasi-judicial. (Heir of Lopez) Atlantic Erectors: You can only apply for Lis Pendens if the property is the subject of the action. o Can you put a notice of lis pendens in a partition case? Yes.

Do you need court approval to effect a notice of Lis Pendens? o Not at all. Just send a memorandum to the ROD, even without court involvement. When do you need court approval? o When you intend to cancel the notice. o Grounds: 1) purpose is to molest other party 2) no need for the notice to protect the rights of the parties who caused it

Summons When does the clerk of court issue summons? o Upon filing of complaint and payment of legal fees by the plaintiff o What are the contents? 1. Name of court and names of parties 2. Direction to answer within required time 3. Notice that no answer can lead to judgment by default o Who serves? Sheriff, deputy, or other proper court officer, or any suitable person designated by court (for justifiable reasons) o What is the return? 1. When service has been completed, the server within 5 days serves a copy of the return (personally or registered mail) to plaintiffs counsel, and 2. Return summons to the clerk with proof of service Can personal service and substituted service of summons work simultaneously? o No. Personal service first, and this is the priority. You cannot have these simultaneously. Where? o WHEREVER HE IS FOUND. Always remember the James Yap rule. What are the requirements for substituted service? Under what circumstances? o Only if personal service is IMPOSSIBLE.

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Proof of this: defendant cannot be served summons after all efforts have been exhausted. Is there a set of standards given by law on how many times you have to try to serve? A case says that it must be at least three times on two different days. o There has to be an explanation. o Where will the explanation appear? In the sheriffs return o How is substituted service of summons done? 1. Leaving copies at defendants residence with person of suitable age and discretion residing therein, or 2. Leaving copies at defendants office with competent person in charge thereof Summons must be served within reasonable time. What do you mean by this? o For the sheriff, 15-30 days according to jurisprudence. After th the 30 day, the court will require the sheriff to submit the return. o Why is this important? If you file a complaint and you dont see to it that the summons is served, your complaint can be dismissed for failure to prosecute. What is alias summons? o If the original summons has been lost or the original summons was returned to court, unserved. o Then you can apply for alias summons. When do you talk about suitable age or discretion, to what kind of substituted service does this apply? o To service at the residence. When you talk about suitable age or discretion for substituted service, what do you mean? o There is nothing in the law that says there must be age of majority but from Manotoc to Pascual, there is consistent jurisprudence that it must be age of majority. Who must it be? Could it be a house helper? o She or he must reside therein. This must concur with suitable age or discretion. So these are two elements.

A visitor or a transient cannot receive summons. But a house helper can. For offices, to whom must it be served? o To a a) competent person b) in charge. o Can a middle manager the same rank as Mr. X receive summons for Mr. X? He must be in charge of receiving summons in the office. o What does in charge mean? In charge of the office. President or manager. For corporations, what is the special rule? o President, General Manager, Managing Partner, Corporate Secretary, Corporate Treasurer, In-house Counsel o Memorize this. It is a closed list. What about foreign corporations doing business? o 1. Resident agent o 2. Any officer within Philippines o 3. Government official designated by law to that effect How is service done to entities without juridical personalities sued under the name by which it is commonly known? o 1. Serve to any one of them or o 2. Upon person in charge of office/place of business o Who is not bound by this, as an exception? Person whose connection with the entity has, upon due notice, been severed prior to the action Can you serve summons to a natural person in prison? o Yes. Serve it to the warden. For public corporations? o RP Solicitor General o Province executive head (governor) o City city mayor o Municipality municipality mayor Can substituted service be served on non-residents? o No. None as a general rule. You cannot do substituted service to a non-resident. o [Sec. 15 does not talk about this situation. Sec. 15 talks about non-resident and cannot be found.] o Is there an exception?

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Yes, but its very narrow. But there must a a) resident spouse b) who was previously appointed as attorneyin-fact. In Secs. 14, 15, and 16: how can summons be done? o By publication. Distinguish. o Section 14: Defendant is unknown or his whereabouts are unknown. How do you do this? Just publish. Do you even have to try personal service? No need for personal service (since you dont know him or where he is). In what kind of case? Whatever kind of action, whether in rem or in personam you can do it by publication, as clarified by the SC. Not just in rem or quasi in rem anymore. How does publication in 14 differ from 15 and 16? In 14, ONLY publication is needed. It does not require service by registered mail in the last known address. o Section 15: Defendant that does not reside in the Philippines and is not found in the Philippines. In what subject matter? 1. Involving personal status of the defendant 2. Property of non-resident defendant 3. Property is attached 4. Where defendant has actual or contingent interest over property What are the modes of service? 1. Personal service outside the Philippines 2. Publication AND service by registered mail in his last known address o N.B. Both must concur. Take note of this. 3. Other modes deemed applicable by the court

How much time does the defendant have to answer the complaint? Reasonable time determined by court, which must not be less than 60 days from notice o Section 16: Temporarily absent from the Philippines Can he be a resident of the Philippines? Yes. But hes just temporarily absent. What is the length of time needed here? None provided How do you do serve summons? 1. Personal service outside the Philippines 2. Publication AND service by registered mail in his last known address o N.B. Both must concur. Take note of this. 3. Other modes deemed applicable by the court 4. Substituted service, if there is impossibility and there are earnest efforts to serve. What is required for Sections 14, 15, and 16? o Must ask for leave of court, through motion in writing, supported by affidavits setting for the grounds, to allow for such service of summons o What if the leave is granted? Can serve summons through publication, etc. Court specifies a reasonable time (not less than 60 days) for defendant to answer What is the purpose of summons? o So the court can peg a date when it acquired jurisdiction over the person. What is the proof of service of summons? o Sheriffs return. What is the proof of service by publication? o 1. Affidavit of printer, foreman, or principal clerk or affidavit of editor, business or advertising manager, and o 2. Copy of publication, and

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3. Affidavit showing deposit of copy of summons and order for publication in the post office directed to be sent by registered mail to last known address (if applicable) What is the rule on voluntary appearance? o It is not equivalent to summons, but if there is voluntary appearance, summons can be dispensed with. What is the rule on Motions to Dismiss? o If you file a Motion to Dismiss, even if you join other grounds other than lack of jurisdiction, you are not deemed to have submitted to the jurisdiction of the court. o Old rule: you have to separate the MTD based on lack of jurisdiction. Maximo v. Montalban: o In this case, his residence is known and he is just temporarily absent. So substituted service is not proper. Samarino v. Ralu: o Here, the sheriff did not prove that facts and circumstances that would allow substituted service (repeated failure to personally serve, etc.) it must be shown in the sheriffs return Ancheta: o There are only a few remedies when the judgment is already final and executory. Here, the petitioner filed a petition to annul the judgment based on lack of jurisdiction over the person (because lack of jurisdiction is used, it can cover both lack of jurisdiction over both SM and the person). Gomez v. CA: o Does it mean that if you are talking about an in rem action you can venture on trying to serve it personally? You can still do personal service, in case you find him somewhere in the Philippines by chance. o Section 14 before limits itself to in rem or quasi in rem. It now extends likewise to actions in personam.

Motions What is a motion? o It seeks relief, but not a pleading. o It does not raise a claim, nor does it raise defenses in an answer.

Does a motion to dismiss take the nature of an answer? No, because it will not lead to a joinder of issues What does EVERY motion need to have? o A notice of hearing. o Directed to whom? To parties. But also give notice to the clerk of court (even if the provision does not say it), because he schedules the hearings. o Absence of a notice of hearing has what effect? The motion becomes a mere scrap of paper. When must notice be given? o The motion must be filed in court and served to the other party at least three days before the date of hearing . (Three day notice rule) What is the ten day rule? o The hearing itself must be scheduled no later than 10 days from the filing of the motion Ex. you file it December 6. The last date you can set the hearing for is December 16. o Understand this along with the three day rule. What is the Omnibus Motion rule? o Include all grounds available; or else, it is deemed waived. o What are these exceptions? 1. Lack of subject matter jurisdiction 2. Res judicata 3. Litis pendentia 4. Statute of limitations What is motion day? o Friday afternoon. o If it is a holiday, set it on the next working day o Is this mandatory? Yes. But some judges apply the rule liberally. But since 2008, this rule has been applied strictly. What is required for motion for leave to file a pleading or motion? o Attach the pleading or motion sought to be admitted

Motion to dismiss

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What are the kinds of dismissal in Civil Procedure? o 1. There is a motion to dismiss in Rule 16, prompted by defendant. MOST COMMON o 2. But there is also a motion to dismiss in Rule 17, filed by the very same plaintiff who filed. Rule 17 also covers failure to prosecute, which is another form of motion to dismiss. o 3. Demurrer to evidence What are the grounds in Rule 16? o 1. Lack of J over the SM How do you determine subject matter jurisdiction? It is the law that confers the right to hear, try, and decide a case The most common source is RA 7691 amending BP 129 o 2. Lack of J over the defendant Look again into proper service of summons Or voluntary appearance o 3. Improper venue Fall back to Rule 4, or special rule under law o 4. No legal capacity to sue Minor age of majority Corporation must be duly registered with SEC Attorney in fact look into scope of authority o 5. Pleading Asserting the Claim States no COA (PACS-COA) Does not go into the falsity or truthfulness of the claim The pleading does not appear to state a COA o 6. Res judicata What are the elements? 1. Final judgment 2. J over SM and person 3. Judgment on merits 4. Identity of parties, SM, cause of action o 7. Litis pendentia Same as RJ, but without final judgment yet o 8. Prescription o 9. Failure to comply with condition precedent Ex. Failure to refer to Katarungang pambarangay

Is this waivable? o YES. Because it is not jurisdictional. Ex. Earnest efforts to compromise Ex. Exhaustion of administrative remedies Does this fall under this ground? o Some commentators say yes. But some say failure to exhaust must fall under PACS-COA o 10. PWEA (Payment, waiver, extinguishment, or abandonment) o 11. Unenforceable under Statute of Frauds Of all these grounds, if the court dismisses, can it be re-filed? o ALL o Except [F,H,I] 1. Prescription 2. Unenforceable under Statute of Frauds 3. Res judicata 4. Extinguish of claim or demand (PWEA) When can you file a MTD? o Within the reglementary period. Fifteen days. How do you count a period? o Just remember the rule on interruption. [Read up Bill of Particulars portion same rule for counting here, including the 5 day buffer] There was MTD filed on basis of lack of J over the defendant. The court, instead of dismissing the action, dismissing the MTD, or ordering amendment of the complaint, filed alias summons. Is this grave abuse of discretion? o There was none. Instead of dismissing the case and waiting for re-filing, the court issued alias summons which will produce the same effect. Preliminary hearing of the affirmative defenses. What is this? o You can file an answer, and the court has discretion to hold preliminary hearing of your affirmative defenses and use it to dismiss the complaint. Thus, an answer can be treated as a MTD. This is a new feature of the 1997 Rules of Court. This has never been asked in the Bar.

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What is the reason for this new rule? Note: a MTD is not a prohibited pleading, but when it issues summons, the court persuades parties not to file an MTD, but to file an answer with an affirmative defense. o Why such court attitude? Because issues will be joined, and pre-trial sets in where parties can compromise. o What is the difference between filing a MTD and an answer? There is no preliminary hearing of defenses in a MTD. Obviously, in an MTD, the motion itself will be heard anyway and that is where the grounds will be proved. In an answer, the court can prioritize the grounds to dismiss the case, which is why the preliminary hearing is needed. What actions are available to the court? o 1. Dismiss action or claim o 2. Deny the motion o 3. Order amendment of the pleading o Can the court defer resolving the motion because the ground is not indubitable? No, it cannot. If the court mistakenly denies your MTD, what is your remedy? o Petition for certiorari on Rule 65 based on GADALEJ. o Does this petition for certiorari suspend the main proceedings? No. Even if there is a pending petition for certiorari, the main proceedings will not be suspended unless you obtain a TRO. o The Eternal Gardens rule, which has been repeatedly abused, invoking judicial courtesy here, does not apply anymore. o Can the Court of Appeals dismiss the case if it feels the RTC committed GADALEJ? Or should it only remand? The court, subject to its discretion, can either dismiss or remand it. There is no hard and fast rule.

Dismissal of Actions

What are the ways by which a plaintiff can dismiss a case? o Filing a notice of dismissal any time before the answer is served (or before his motion for summary judgment, if applicable). Dismissal is a matter of right. o What happens to the counterclaim? There is no counterclaim yet, because there is no answer. o Can this case be re-filed? Yes. o What is the exception? Dismissed a second time under this section. What if there is already an answer? See Pingga case o File a motion for dismissal. o What happens to the counterclaim, if there is? It does not get dismissed. Pingga limits the dismissal to the complaint, not the counterclaim. This abandoned BA Finance rule. o Does this rule cover both permissive and compulsory counterclaim? Yes. o What is the option of the counterclaimant? Within 15 days, the party would have to manifest its willingness to prosecute it in the same action; otherwise it will be prosecuted in a separate action. When is there dismissal due to the fault of the plaintiff? o 1. Plaintiff fails to appear on the date of presentation of his evidence in chief without just cause o 2. Failure to prosecute his action for an unreasonable length of time o 3. Failure to comply with the ROC or any order of the court o How is the dismissal under this section done? 1. Upon motion of the defendant 2. Upon courts own discretion o How does this affect counterclaims? Same; it can be prosecuted by the defendant in the same or separate action. o What is the effect of dismissal under this section? It is an adjudication upon the merits (thus with prejudice)

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Pre-trial When is pre-trial conducted? o Rule 18 Sec 1 does not say, it just says that the ex parte motion by the plaintiff to move the case for pre-trial must be done promptly o BUT the 2004 guidelines say it must be within 5 days after the last pleading has been filed What if the plaintiff fails to move for pre-trial? o The 1997 rules are silent. Before, dismissal was the consequence, for failure to comply with Rules of Court. But this is not the consequence anymore, because of the 2004 rules, which gives a specific outcome. o 2004 rules: DUTY OF THE CLERK OF COURT to move for pre-trial. Before actual pre-trial, a few days before, what happens? o Preliminary conference before the clerk of court. It will be recorded and will form part of the pre-trial record. o They explore possibility of compromise, etc. o This is almost like a mini pre-trial. Expect two dates in one notice o One setting the preliminary conference o One setting the pre-trial itself On the first day of pre-trial what is the order of the day? o The court issues an order referring the case to a courtannexed mediator. Forward the records to him. o You have to pay fees for a mediator. o For the time-being, the pre-trial proceedings are suspended. o What is the period for suspension? 30-60 days. But in the same order, the court will say that if within this period, there is no compromise, there will be resumption of pre-trial on a later day. What if there is inability to compromise? o Records returned to court. The court will resume pre-trial. o The Judge with all tact, patience, and impartiality, endeavor to arrive at a settlement of the dispute Confers with each party as to what is acceptable as a compromise at the present stage

Judge talks to parties and their counsel separately Judge talks to only parties What do you need to submit at pre-trial? o Pre-trial brief. o What if you fail to submit a PTB? Same effect as if you didnt appear at pre-trial. Request for admissions: Rule 129 Section 4 Judicial Notice: o No need for introduction of evidence o You want an admission to abbreviate the proceedings o You are submitting just proposals. If accepted by the other party, it becomes an admission. Issues to be submitted for resolution Documentary and testimonial evidence to be presented: o One day examination of witness rule if you can direct, cross, re-direct, and re-cross a witness in one day, do so. (This is in the guidelines, not in the Rules of Court.) o Submit the most important evidence first. o Evidence will be pre-marked. What is the effect of failure to pre-mark? You can no longer present the evidence if you failed to pre-mark it. Unless the court allows you in the interest of justice, or if newly discovered. o What if you fail to name the witness in court? You cannot present the witness anymore. What are the other contents of the brief that you may put? o Referral to Commissioners o Explore possibility of compromise o Possibility of judgment on pleadings or summary judgment o Avail of deposition/modes of discovery How do you avoid consequences of absence? o According to the provision, if there is a good excuse for absence, the consequence will not vest. You can also authorize someone to appear on your behalf in pre-trial. What happens next? o Pre-trial order is issued by the court. DIFFERENCES BETWEEN CRIMINAL AND CIVIL PRE-TRIAL

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What if it is a criminal case and the prosecution is absent. What happens? It will be re-scheduled. o What if the accused is absent? The prosecution CANNOT present evidence ex-parte because it will violate the accused persons right to confront witnesses. o RULE 118. TAKE NOTE OF THIS. THIS IS THE DIFFERENCE BETWEEN CRIMINAL AND CIVIL PRE-TRIAL. o For an admission of the accused to take effect against him, what must be done? It must be in writing and signed, by both the counsel and accused. No such requirement in civil admissions in pre-trial. Judicial Dispute Resolution o In the past, the JDR process only applies in Makati. Now it also applies in QC and Manila. o The judge here is both a mediator and a conciliator and an independent evaluator. o Unless the parties consent to continue with the JDR judge, it is mandatory that there will be a new raffle and the new judge who will undergo pre-trial, hear, try, and decide the case is the trial judge o This step happens when the Clerk of Court receives the Mediators Report of a not settled mediation o Check http://www.pmc.org.ph/downloads/JDR_Guide.pdf To summarize: o 1. Preliminary conference o 2. Court-annexed mediation o 3. Judicial Dispute Resolution If QC, Makati, Manila o 4. Pre-trial

Intervention What is the concept of intervention? o A third party takes part in a case between other parties

Because he has a legal interest in the subject matter of the case or he will be adversely affected by distribution/disposition of property in custody of the court What are the requisites of intervention? o 1. Either: a. Legal interest in the matter in controversy b. Legal interest in the success in either of the parties c. Legal interest against both d. Will be adversely affected by distribution or disposition of property in the custody of the court o 2. Intervention will not unduly delay or prejudice the adjudication of rights of the original parties o 3. Interveners rights may not be fully protected in a separate proceeding How do you intervene requisites? o 1. File a motion to intervene o 2. Attach the pleading-in-intervention to it What are the pleadings in intervention? 1. Complaint-in-intervention if he asserts against either or all of the original parties 2. Answer-in-intervention if he unites with the defending party o 2. Serve to the original parties When can you intervene? o Any time before rendition of judgment in the trial court o For appellate courts, it is subject to their discretion (because the ROC is silent) After judgment, can there still be intervention? o As a rule, no. o But for an indispensable party, the court will allow intervention even after judgment. Nordic: o There was a mortgage over a vessel to secure a loan. There was a default in the payment. For this reason, there was an Extra-judicial foreclosure. While the petition was there, there was a subsequent case filed. o There was a complaint filed by the crew members of the vessel against the vessel in RTC Manila (sum of money case).

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The mortgagee sought to intervene in the sum of money case, because it held a Preferred Ship Mortgage. o HELD: No legal interest, no cause of action. There must be a personal cause of action in order to intervene. Here, the mortgagee had no interest in the sum of money case. And in this case, the mortgagee can protect its rights in the foreclosure case. What is the remedy if the intervention is denied? o Aggrieved party must appeal. o Mandamus will not lie except in case of GADALEJ What is the remedy if the intervention is granted? o Petition for certiorari (since the order is interlocutory, unlike the dismissal of the complaint/answer-in-intervention, which is final.

Subpoena Types of subpoena? o 1. Ad testificandum: appear and testify o 2. Duces tecum: appear and bring with him the documents or things N.B. He must appear too. Cannot just mail or send. Who can issue a subpoena? o 1. Court where witness must attend o 2. Court where deposition is taken o 3. Officer/body conducting investigation o 4. Any justice of CA/SC in any case/investigation pending o Can the OMB issue a subpoena? Yes. o Can the office of the prosecutor issue? Yes. Is the receipt of a subpoena by a respondent in a case filed before the office of the prosecutor necessary for the office to acquire jurisdiction over the respondent? o No. It is totally irrelevant. Preliminary investigation before the Office of the Prosecutor is a statutory right, not constitutional right. You can altogether dispense with it, or waive it. It is not essential for due process.

There is an express provision in Rule 112(D) that says failure to receive the subpoena will not bar the prosecutor from issuing a resolution. It is not imperative. Can a regular court judge subpoena a convicted person? o Yes, but the judge examines if it is for a valid purpose o For those under death/RP/Life and confined: must be authorized by the SC to appear under subpoena Heart of the rule on subpoena is in Section 4 (Quashing a subpoena) o How do you quash a subpoena ad testificandum? 1. Witness is not bound thereby What is an example of this? o If the witness is not qualified. Ex the witness is the spouse of the person he/she is testifying against 2. Witness fees and kilometrage allowed by the Rules were not tendered Witness must live within 100 KM of the place where hearing is conducted o How do you quash a subpoena duces tecum? 1. Unreasonable and oppressive 2. Relevancy of the books, documents, etc. does not appear 3. Failure to tender the costs of production 4. Kilometrage/witness fees 5. Failure to describe with particularity N.B. not in the rules Can the clerk of court issue a subpoena in the absence of a judicial action? (Note, this is not referring to investigation by a quasi-judicial body.) o No. What are the consequences of failure to comply with the subpoena? o 1. Arrest Witness pays for the costs of arrest if failure is without just cause o 2. Contempt, if without just cause o To whom do these provisions not apply to? 1. Those who reside beyond 100KM from place where he is to testify

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2. Detention prisoner where no permission of court was obtained

Depositions (Rule 23) What can be the subject of Modes of Discovery? o As long as (1) relevant and (2) not privileged, and it must be in (3) good faith What do you mean by relevant? o Germane need not as strict in definition as what the Rules of Evidence require So not covered by pleadings or not a fact in issue is not a defense It just needs to have something to do with the case o Why the wide latitude in taking advantage of Modes of Discovery? So that litigants and lawyers cannot suppress information, and so that all information needed for a just decision is on the table What is the difference between taking a deposition and using it? o Taking deposition the court affords the widest latitude. o Using deposition the rules are stricter Ex. Witness is dead, abroad, cannot be summoned, etc. What is the difference in the standard of relevance as regards use, vis-a-vis taking? Follow the usual rules of evidence. o Can a deposition take the place of an actual oral testimony? As a general rule, it cannot. Its hearsay. You have to present the witness in court. A deposition is not a substitute for oral testimony. Oral testimony is required under Rule 132. But this pertains to the use of depositions. In taking them, you have wide latitude. But to use it, you have to present the actual witness in court still. o What are the exceptions?

Provided in ROC. Ex. Witness is out of the country, is dead, resides 100 km away from place of hearing, cannot be subpoenaed, sick, infirm, etc. o If you take a deposition, are you compelled to present it in court? No. o If you use a part of a deposition, can the rest be presented? Yes. o If you fail to cross examine the witness in the deposition, can you still cross-examine him in court? Yes, you definitely can! (Sabio) o Always distinguish between take and use. Are modes discretionary? o Yes, the court ultimately has discretion o While the parties can resort to it without leave of court, the latter still can control how modes of discovery are used Ex. Changing from oral deposition to written interrogatories; deeming something as harassment, etc. o Also, if there is no answer yet, there must be leave of court. o Can the court say you have enough information already, dont resort to modes? Yes. Its within court discretion. o What is the rule on SC involvement? SC does not get involved with TC decision unless it is committed with GADALEJ. Are modes of discovery cumulative? o Yes. You can use them one after another, or at the same time. o But when will the court prevent resort to one mode after another? When you slept on your rights. Example: you could have filed all at the same time, but you chose not to. When can you avail of Modes of Discovery? o Any time, even during execution When do you need leave of court, and when do you not? o Prior to filing of the answer, you need leave of court. The issues for contention have not yet be en joined. You dont exactly know yet what is germane to the case.

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After filing of the answer, no need for leave of court. Contrast with amendments: You need leave of court after answer; before answer, you just need notice. Who can be examined? o Anyone. Who can seek deposition? o Any party. What is the scope of examination? o Any matter not privileged, even if it is hearsay and may not be used in court eventually (again, taking is different from use) o See Sec. 2 How is information taken? o Question and answer, like in trials. Direct, cross. How is it used in trial (Sec. 4)? o 1) To impeach or contradict the testimony of the deponent as witness What if you called the witness yourself? Can you impeach your own witness by presenting the deposition? Yes. Because when you take the deposition, you are not considered to have made the deponent your witness. Or, if the witness starts becoming hostile, you can move to have him declared an adverse witness so you can impeach him. Alternatively: just get another witness to contradict the prior one. o 2) Can be used by one party against an adverse party (including responsible officers of corporation as adverse party) of for any purpose WIDEST discretion. Can be used to support own evidence, can be used to impeach, etc. o 3) Used in place of oral testimony, when: A) Witness-deponent is dead B) Resides more than 100KM away, except if the party calling that witness procured the partys absence // or out of the Philippines

o o

C) Unable to attend due to age, sickness, imprisonment, etc. D) Unable to compel attendance of the witness through a subpoena E) Exceptional circumstances Take note that for this ground, there must be application and notice to the court, since it has to decide whether exceptional circumstances exist. What if the witness lives in Rockwell and he is temporarily assigned to Pangasinan, do you need to summon him to court or can you depose him? o Even if he is assigned elsewhere, the term is RESIDES so he must live there. This is the rule that applies if he is still inside the Philippines, but elsewhere. o This rule DOES NOT apply if the person is outside the Philippines. Even if a party is temporarily outside the Philippines, you can depose him. o N.B. Take note, however of the rule that absence must not be procured by the deposing party. A party can present a part of a deposition at any time. What is the right of the other party? o Right to compel the introduction of the rest of the deposition relevant to the fact in issue. X substituted for Y. X raised the objection that the deposition cannot be used against her because she said she is a new party and the deposition cannot be used against her. o Rule 23, Sec 5 provides that substitution does not affect the right of depositions previously taken; o Notice to Y is notice to X. X only stepped into the shoes of Y. How do you object when a deposition is being used against you? o There are actually two stages in objecting to depositions: First stage during taking of the deposition. You can object to questions as being leading, etc. Second stage time of use. You can object on any ground that would lead to the exclusion of the deposition, as if the witness were present. Ex. witness is incompetent to testify, is a minor and has no capacity to perceive, etc.

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Exactly in which stage of trial do you object to the use of the deposition? At the time it is being offered, as with all kinds of evidence Before whom can a deposition be taken? o A. If in Philippines: 1. Judge 2. Notary public 3. Any person agreed upon by the parties, as long as he can administer oaths o B. Outside the Philippines: 1. Embassy, legation, consul, consular agent 2. Any person By commission Letters rogatory 3. Any person agreed upon by the parties, as long as he can administer oaths Who are disqualified to be deposition officers? [Memorize; this has not yet been asked] o 1. Sixth degree of consanguinity from party o 2. Employee or counsel of party o 3. Sixth degree of consanguinity or employee of partys counsel o 4. Financially interested in the action Can a judge before whom the action is pending take depositions? o Yes. (Ayala Land) Dulay v. Dulay A brother duped his brother; both are Filipinos. One brother is a naturalized American, and applied for the latters naturalization. The US government approved it. The later, once there, was made the trustee of the deposits of the former. He spent the money. Filed case in Philippines. Took deposition of bank manager in US. The local court communicated the request with foreign authority (letters rogatory communication by one judicial authority to another to follow the rules of the latter). This is distinguished from commission where a person is appointed commissioner; the deposition is governed by Philippine rules. o What is the difference? Commissioner has no power to issue compulsive processes like subpoenas. Courts can.

In this case, the court of Boston ignored the letters rogatory, so they applied for deposition before a notary public. The local court refused to accept, requiring a consular certification. o The court here allowed because the letters were ignored and there was no consular office in Boston, so they allowed deposition before NY notary. What is the rule in setting the time/date for deposition? o Reasonable notice is the general rule. o What is the rule on notice? Give name and address of deponent Give time, place, date of deposition o Do you have to say who the deposition officer is? No. No need to disclose it. o Why is notice to the other party needed? Due process. So the other party can make objections, etc. o Whose duty is it to give notice to the other party? The party taking the deposition, because in general, the court does not intervene o What notice is given? Actual notice. Can the other party oppose the taking of a deposition? o Yes. o Under what grounds? Annoy, embarrass, oppress memorize these words It is irrelevant What is the process to take deposition? o Rule 23, Sections 19-21. o Who does the recording? A stenographer, clerk, secretary under the direction and supervision of the officer o Then? The deponent examines it and signs it Can signing be waived? Yes. o After the signature, what next? The officer certifies it first

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Then files it in court with indication that it is authentic and complete o If there are objections, etc, can the officer rule upon them? No. He just records the objections. o There is a notice for oral deposition. If one of the parties to the deposition cannot attend, and just instead sends a list of questions, can this be done? Yes. But the officer will read the questions verbatim and record the answers verbatim. o What if the deponent does not want to answer? (Ex. He says no comment.) Generally, if youre the officer in a deposition, you cannot do anything about it. EXCEPT: if you are a judge empowered through letters rogatory If the procedure is not followed, what will happen? What is the consequence? o A party can file a motion to suppress deposition because the procedure was not followed o What is the Ayala doctrine? The rules can be relaxed because the deposition was taken before the judge in the main case. The judge knows its authentic and complete by personal knowledge. Can a subpoena be issued by reason of deposition-taking to make sure that the deponent comes? o Yes. Rule 21, Sec. 5 What if the one called for the deposition does not show up? o He will be asked to pay for the costs of the other party/witness which attended o [If you ask for a deposition, you can rely on the compulsory powers of the court (ex. To issue a subpoena) to make sure witnesses attend, because at least you wont be liable if he fails to show up.] Can a deposition of a deceased person be presented in court? Is this not hearsay? o It can be presented, as long as it was subjected to cross examination. It is hearsay, but it can be submitted. o Is cross examination a necessity?

Yes; necessary to exempt it from the hearsay rule. Re: irregularities on taking of deposition. What is the general rule on errors/irregularities on taking depositions? o General rule is that it is waivable o What is the exception? Relevance or competency of evidence failure to object is not a waiver Unless a timely objection could have obviated the defect How are written interrogatories different from oral deposition? o The questions are in written form instead, instead of personally appearing. o This is usually the most relied upon form of deposition since it saves time and costs, and especially if the issue to be discovered is not very contentious When are cross-interrogatories submitted? o Within 10 days Re-direct? o Within 5 days Re-cross? o Within 3 days When is the period to object? o The same as the period to file the responsive pleading. Can you take deposition even after pre-trial? o Yes. o Do you need to reserve? No need, even if you do not reserve it during pre-trial. (Jonathan Landoil) What are the consequences for non-compliance with order for deposition? Can it be dismissed? o Yes, the court can dismiss. There can even be a judgment by default o However, in the old case of Arellano, the court dismissed the case due to refusal to be subjected to deposition. But the SC said it was wrong. In this case though, the matter subject to deposition is an incidental matter only, not the main issue of the case. o Bottom line: it IS a possible result, but fall back on materiality of the matter

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Depositions before action or pending appeal If there is no pending case can you take a deposition? o No. You file a case for the perpetuation of a testimony o So you file a case for the purpose of perpetuating a testimony What is the special rule on venue here? o Place where the expected adverse party resides Ex. Ms. Bolong and Ms. Tan are fighting over a guy. Ms. Bolong is expecting that Ms. Tan will file an action against her for malicious mischief. Mr. Tuazon knows the truth, so Ms. Bolong is going to take his deposition and file a verified petition in the court of the place where Ms. Tan resides. What are the contents of the petition? o 1. That the petitioner expects to be a party to an action in a court in the Philippines but is presently unable to bring it o 2. Subject matter of expected action and his interest therein o 3. Facts he wants to establish by the proposed testimony and reasons for such o 4. Names/description of expected adverse parties and addresses if known o 5. Names and addresses of persons to be examined and substance of testimony expected o What is the relief sought? Ask for order authorizing petitioner to take depositions of these persons What is the requirement for notice and service? o Petitioner serves notice upon each expected adverse party o At least 20 days before hearing, court causes notice to be served on: 1. Parties 2. Prospective deponents For which can it be used? o It can be used in any action involving the same subject matter What if it involves the same subject matter but different parties but not impleaded? o Cannot be used. Must be the same party, or one represented during the deposition taking. The general rule should apply. When could you apply for deposition pending appeal?

o Before judgment becomes final Where filed? o In the court where judgment was rendered o The taking is different from the use, again. So it can be taken in the RTC but used in the CA. There is a pending case for certiorari, can you take a deposition pending appeal? o No, certiorari is not an appeal

Interrogatories to parties What is the nature of interrogatories to parties? o Served only by parties to parties o Generally only one set, unless allowed by court (sec. 4) How are interrogatories to parties served? o Serve on adverse party and file in court o Serve on party, not on counsel; but counsel may answer How are answers served? o Answers are served on party submitting and filed in court o Written, subscribed and sworn to under oath o 15 days to file answers When must objections be filed? o Objections must be filed within 10 days o N.B. Fresh period applies (according to some opinions) What objections may be made? o 1. Irrelevant o 2. Meant to harass o 3. Not within knowledge, hearsay What is consequence of failure to file written interrogatories to parties? Failure to serve and file cant call adverse party as witness Party not served with written interrogatories may not be compelled by the adverse party to give testimony in open court or to give deposition pending appeal What is the scope and use of these interrogatories? o May relate to any matter under Rule 23 Sec. 2 for same use in Rule 23 Sec. 4 What is the effect of failure to answer? o Case may be dismissed if material o o

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Or judgment by default

Distinguish Rules 23 and 25: o Rule 23 Party or a witness, or any person for that matter o Rule 25 Interrogatories to PARTIES. Always to parties. How must the questions be answered? o Rule 23 there is direct, cross, re-direct, and re-cross o Rule 25 Just one set of questions to be answered by the other party Re: time to answer o Rule 23 no fixed time to answer, because what dictates the period is the officer (since they have to appear before the officer) o Rule 25 15 days from service thereof Segue: can you call the adverse party to the witness stand? o YES! In general, YES. The answer is in Rule 132, Sec. 12 o It is different if you call on the witness the accused himself (in a criminal case)

Request for admission What is a request for admission? o 1. Requesting to the other party that he admit the genuineness of any material/relevant document What else do you need to do? Attach the document so it can be examined Does an admission cover the contents of the document? No, just the genuineness so you do not have to prove it exists and it is genuine The contents can be up for contentions Case: There was a pre-trial. One party submitted a list of equipment, and wanted the other party to accept it. The other party said it was incomplete, and asked that the first party prepare a new list to submit to the court within X days. Instead of submitting it to court, the first party submitted a request for admission to the other party. Instead of answering, the second party kept quiet. HELD: It was an implied admission.

o 2. Or truth of any material and relevant matter How do you initiate it? o File it in court and serve it to the other party When? o After issues have been joined The admission must be directed to whom? o The adverse party (Not the counsel it must be served to the other party) (Duque) o But the partys counsel may answer (Larada) What is the effect of failure to answer or reply to a request for admission? o It is deemed admitted. o Must reply within 15 days. What can the party also do in this period? Can submit an objection What happens to the period? It suspends the fifteen days What if the objection is denied, what happens to the period? The court sometimes gives extra 10 days, 5 days, etc. So its really within its discretion. Who will suffer the cost? o The other party who refused to admit, if it is eventually proven to be genuine or true o But in the meantime, advanced by the party requesting What is the effect if you fail to ask the party to admit certain material facts, which you could have asked and ought to be within the personal knowledge of the latter? o You cannot present evidence on such facts. o This is very important although a lot of judges or litigants fail to take advantage of this or recognize this. o But this is still subject to the courts discretion. What do you attack in requests for admission? Ultimate facts or evidentiary matters? o As a matter of advice, attack the evidentiary matters. o Evidentiary matters are harder to deny (Ex. Is it true that the day before you were caught beating the red light and your license was already confiscated for a prior violation?)

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There are four ways to respond to respond the request for written admission: o 1. Specifically deny written admissions o 2. Not do anything o 3. Admit o 4. State why he cannot truthfully admit or deny for lack of knowledge N.B. A denial for want of knowledge if the fact is so plainly and necessarily within the defendants knowledge, his alleged ignorance or lack of information will not be considered as a specific denial Can you use an admission made in one case for another case? o No. It can only be used for that case and for that purpose alone. o If its the same case, but for a different purpose? Its actually hard to say because admissions are not stated for a particular purpose. Atty. Melo: So its safe to say that once admitted, it usually be used in that same case. When an admission is made, is there any way for it to be retracted? o The party making the admission can withdraw or amend o Must have good reason. So this is discretionary upon the court.

Producing or inspection of things/documents How do you initiate or start? o Filing a motion in the court where the case is pending o Comply with the requisites of motions (so give notice to other parties) What kinds of documents can you produce or inspect? o Anything that is relevant/material and not privileged o But you have to show good cause Fishing expeditions are generally allowed in Modes. Is it the same for this rule? o No. Rule 27 is not as free as the other rules see Solidbank

The SC said that the motion to produce must not permit a roving inspection of a promiscuous mass of documents. So the general rule that fishing expeditions are allowed has less application for this rule. o Because here: (MEMORIZE) 1. You need a motion 2. You need to show good cause 3. You need to describe the documents with particularity Whats the difference between a subpoena duces tecum and production of a document? o 1. SDT: just request for a subpoena to be issued by the court and the court will issue. POD: you have to name the documents with more particularity. The process to secure the subpoena is a bit more lenient (as opposed to motion for production, which is in a motion that must be heard) o 2. POD: you have to file a motion and provide good cause. Since this is a mode of discovery, you still dont have particular documents in mind, though you still have to describe them with some particularity. o 3. SDT: If the one with custody over the documents is a nonparty, use a subpoena duces tecum What must be the subject? o Books or things in the custody of the party addressed o Possession, control or custody So if its no longer in the possession, control, or custody of the party, he or she may refuse o Control implies that sometimes the person does not have authority to release/disclose these things or books When can it be done? o There must be a pending case. Can it be applied to land or other property? o Yes, there can be ocular inspection of land or other property. What are the tests involved? o Reasonableness and practicability Tanda v. Aldaya: o Motion to produce must be for inspection, photocopying, etc.

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The document cannot be left with the court for distraint, as one party here wanted to leave them with the clerk of court. Is production required for presentation of secondary evidence? o Yes, apart from a mode of discovery, it can be a preparatory act to present secondary evidence. If you require production and the other party refuses or says it is lost, then you can produce secondary evidence. o But there is need for request to produce o So if you get a request to produce but it is targeted to a specific document, most likely it is for secondary evidence You applied for production of books/papers/documents, and you are allowed to examine. Are you bound to present it as your evidence? o No, youre not required. It is a mode of discovery a way of discovering evidence. If you like what you see, you still have to go through the process of presenting it in court. N.B. Under 2004 guidelines, it is the duty of the judge to issue an order to the parties to avail of Modes of Discovery under Rules 23, 2527

That examining party can now also ask for previous or subsequent examination on the same matters of the examined party o It must refer to the same condition. So if the examination was on the other partys head for mental examination, she can only ask for similar reports on the mental condition of that party. What if the examined party refuses? o The court may make an order for delivery of the report o If there is refusal or failure to do so, and if by chance, that examined partys physicians were allowed to testify, their testimonies can be excluded. What is the effect of the requested party requesting for a copy of the report made or taking the deposition of the examining physician? o He waives any privilege in that action or another action involving the same controversy, as regards testimony of other examining persons, whether before or after o N.B. Privilege of doctor-patient only applies to civil case, not criminal case

Physical and mental examination This is so limited in its use that even the 04 guidelines do not include it When can you apply for this? o Mental or physical condition is in controversy N.B. This is the only mode of discovery which the court can motu propio can issue. The other modes, you have to apply for. What is required? o 1. Also upon motion o 2. And with good cause shown When can it be done? o When the physical or mental condition of a party is in controversy o Ex. Guardianship, Physical Injuries, etc. What does in controversy mean? o It has to be one of the main issues of the case, not just a side matter. What is the consequence if the copy of the examination is given to the party examined, upon the latters request?

Consequences of non-compliance What if there is refusal to answer questions in oral examination or interrogatories (Rule 23 or 25)? o 1. The proponent may pursue other questions o 2. The examination may be adjourned o 3. The proponent may request for a court order to compel an answer o What if the application for the order is granted? 1. The deponent must answer What if the deponent still refuses to answer? o Indirect contempt 2. And if there was without substantial justification to refuse, the court may compel payment of reasonable expenses to procure the order, including attorneys fees o What if the application is denied? 1. The deponent need not answer

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2. If the application was without substantial justification, the court may require the proponent or counsel or counsel (or both) to pay the deponent reasonable expenses to oppose the application, including attorneys fees When is there indirect contempt of court? o 1. The deponent refuses to be sworn in o 2. The deponent refuses to comply with court order to answer a question What if a party or officer/managing agent of a party refuses to obey either: a) order to answer, b) Rule 27 (production/inspection), or c) Rule 28 (physical/mental examination), what are the courts options? o 1. The matter asked, contents of the paper/property, or mental/physical condition deemed established, for purposes of the action o 2. Order refusing to oppose claims on that matter, or submit designated documents/thing, or introducing evidence on physical/mental condition o 3. Any of the following: Striking out pleadings or some parts thereof Staying proceedings Dismissal of the action Judgment by default o 4. Arrest of the party/agent of the party Exception? For Rule 28 (examination of physical/mental condition) What if a party refuses to admit genuineness of a document or truth of a matter of fact (Rule 26) and then it was found to be genuine/true? o The proponent may apply to the court for an order requiring reimbursement of reasonable fees to procure his proof, including attorneys fees o When does the court award this? Every time, except: 1. If the denial was with good reasons 2. The admissions sought were without substantial importance

What if a party/managing agent of a party fails to appear in deposition or fails to serve answers to written interrogatories? o On motion and notice, the court may: N.B. There must be notice by the party o 1. Strike out o 2. Dismiss action o 3. Enter judgment by default o 4. Order payment of reasonable fees including attorneys fees Against whom can there be no order of payment of expenses and attorneys fees? o The Republic Can you use modes of discovery in special proceedings? o Yes. o Special proceedings do not provide for an answer. But the general principle of suppletory application (Rule 72, Sec. 2). Is there criminal deposition? o There is a Rule 119. Use it instead of Rule 23. Rule 119 talks about a pending criminal action, but it is no trial yet. o You can call witnesses even before trial and obtain their testimony. o But there is distinction between conditional examination of witnesses for the prosecution and condition examination for accused. For prosecution examination before trial can only be done in the court where the action is pending because the law wants it to be harder for prosecution. For the accused, it should be made before either any judge, before any member of the Bar (good standing, etc.), any inferior court designated or appointed by a superior court. o But the law does not say its deposition. But its akin to such, according to a Supreme Court decision. Does physical/mental examination as a mode of discovery apply in criminal trial? o Its inherent.

Trial

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Both civil and criminal procedures will not provide for conduct in examination of a witness. Where is it found? o Rules on Evidence. What is the order of presentation of evidence? o 1. Plaintiff, to support complaint o 2. Defendant, present defense o 3. Third party, and so on o 4. Parties faced with counter or cross claim, present defense o 5. Rebutting evidence Can it be reversed? o Yes, it can, if there is an affirmative defense. o Plaintiff in the usual and ordinary course of things presents before the defendant. o Can there be reverse order if it is a civil case? [Check answer] Can there be judgment without trial? o When parties agree on facts involved in the action o If the agreement of facts is partial, trial shall be held as to others What are the grounds for cancellation of hearing (actually, postponement)? o 1. His presence is indispensable and illness is excusable N.B. it does not say the party must be indispensable; just his presence o 2. Absence of evidence, and the evidence is material and cannot be procured despite due diligence Who can receive evidence? o Generally, the judge o Exception: to the clerk of court delegated authority to receive evidence 1. There are default proceedings 2. Ex parte Examples of ex parte proceedings? o Default o Application of indigent o As in default [did not appear during PT] 3. Parties agree in writing

Can an adoption case proceeding be delegated to the clerk of court for reception of evidence? o No. o Always with the judge Can a clerk of court issue a subpoena? o Yes, if it is a subpoena ad testificandum. If it is a subpoena duces tecum, there must be order by court. Can the clerk of court resolve objections raised in an ex parte proceeding? o No. o Just note the objections, and forward to the judge. o The other party is not there who will object? Well, the clerk of court just has to note it down if clearly objectionable.

Trial by commissioner Who is a commissioner? o Person authorized by the court to receive evidence o Ex. auditor, referee, examiner Any matter can be referred to the commissioner, when? o If the parties consent. ANY MATTER. But if the parties do not agree, what can be referred to the commissioner? o 1. Requires examination of long account o 2. Taking of account necessary for courts information for court to render judgment/execute it o 3. Question of fact arising from motion Can a commissioner issue a subpoena? o Yes. o Can he issue a subpoena duces tecum? Yes, as long as within the order of reference (his authority) What if a witness refuses to obey a subpoena issued by the commissioner or give evidence before him? o Deemed a contempt of the court that appointed the commissioner Can he resolve objections? o Yes.

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o N.B. this distinguishes him from a clerk of court When are commissioners mandatory? o Expropriation mandatory in second stage o Partition only optional If the parties stipulate how the property will be partitioned, there is no need to go to the second stage where commissioners are required Report of a commissioner is not a judgment. It only aids the court. What are the options of the court? o It may adopt, modify, or reject the report o What if the parties stipulate that the commissioners findings of fact are final? Only questions of law shall be considered thereafter What is the rule on objections? o 10 days from filing of report, parties can object to the findings of the report o BUT, must make it before the commissioner during proceedings, if these can be made by then otherwise, will not be considered by the court Who shoulders the cost? o The losing party, in general. But the court may apportion

Consolidation When can there be a consolidation? o When actions involve a common question of law or fact What is the difference between consolidation and joinder? o In consolidation, the cases are already pending; in joinder, the cases are just being filed There was a case where the court allowed for the consolidation of cases in two different judicial regions even when it was not even an issue in the case! What are the grounds for separate trials? o Convenience or avoidance of prejudice may separate a claim (ordinary, cross, counter, third-party)

Demurrer to evidence When do you apply for demurrer?

In civil, when plaintiff has completed presentation of evidence In criminal, when the prosecution rests its case When is this exactly? After formal offer of evidence Do you need leave of court? o In civil cases, no need for leave of court. o But if you file leave, is it okay? Nothing really wrong, but youre just delaying your case. o In criminal cases, can you file demurrer without leave of court? Yes, but if it is denied, the consequences are serious. If there is no leave, and demurrer is denied accused waives the right to present evidence If there is leave of court, and demurrer is denied accused can still present evidence What is your remedy of the losing party defendant if the demurrer is granted? (civil) o Can still appeal, because demurrer is a final disposition of a case. If your demurrer is denied, what do you do? (civil) o You can submit evidence, and continue until judgment. o Can you file for an MR of the denial? Yes, you can file. As long as there is an order, you can file an MR. You can even file it to a judgment, although it is not a prerequisite for appeal. o If the MR is denied, what can you do? File certiorari But in criminal demurrer, can you file for certiorari after denial of the MR? o You cannot appeal a denial or file for certiorari until final disposition of the case. Dayap: Criminal demurrer. What is the effect of dismissal in a criminal case? o It amounts to an acquittal. This is not a dismissal without prejudice. You cannot re-file. o But is it reviewable by appeal? No. It is an acquittal. Double jeopardy has set in. o But is it reviewable by another mode?

o o o

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Petition for Certiorari (Rule 65) Salazar: Demurrer to evidence takes the nature of a motion to dismiss. If he files it without leave of court, he waives his right to present evidence and he submits the case for submission purely on the evidence presented by prosecution. o If the demurrer is granted and the accused is acquitted, can the accused adduce evidence on the civil aspect of the case? Despite the acquittal, the court can still hear the case as to the civil aspect, unless there is a declaration that the fact from which the civil liability would arise does not exist. So if the accused was not able to present evidence in the civil aspect, it is a void judgment. Radio Wealth: Civil demurrer. What is the consequence of a reversal by the higher court, after the initial granting of a demurrer? o The defendant cannot adduce evidence anymore. The court will render judgment on the available evidence. o This effect does not apply to criminal cases P v. Cachola: N.B. In a bar exam, demurrer was once coined as motion to dismiss on the ground of insufficiency of evidence. This case used the very same terms.

Judgment on the pleadings When is there judgment on the pleadings? o 1. The answer fails to tender an issue o 2. Or the answer admits the material allegations of the adverse partys pleading What do the material allegations mean in the second ground? o It means the cause of action o See the next section on Summary Judgment as to what the difference is with that concept Who files a motion for judgment on the pleadings? o The plaintiff, always Can there be partial judgment on the pleadings on this ground? o No. Its ALWAYS a full judgment on the pleadings.

N.B. This is different from summary judgment, where there can be partial or complete summary judgments. Can the defendant file a motion for judgment on the pleadings? o Based on a counterclaim. If youre the plaintiff, when can you file a motion for judgment on the pleadings? o After the defendant files an answer. o Can it be during pre-trial? Yes under Rule 18, Section 2g. But as a rule of strategy, file it upon first chance to do so. o Can you file a motion for judgment on the pleadings after pre-trial? Yes. But this is really belated. If youre the defendant, when can you file? o Anytime. (Note: this is on a counterclaim, so it doesnt kill the general rule that only the plaintiff can file this motion) Can the court motu propio render a judgment on the pleadings without motion of the parties? o No. It must always be upon application. o Very important: But during pre-trial, the judge may prompt the parties during pre-trial to have judgment on the pleadings (Rule 18). But its still, ultimately with the parties consent. So in the end, the judge still cannot grant it on his own. What are the effects of motion for judgment on the pleadings? o 1. The movant admits all of the material allegations of the other party and rests his motion for judgment on those. o 2, Movant waives or renounces claims for damages because allegations as to amount of damages are not deemed admitted if not specifically denied. What is the requirement for notice of hearing? o 3-day notice of hearing (general rule on motions) o N.B. in summary judgment, the opposing party is given 10 days notice What is the remedy against judgment on the pleadings? o Rule 45 certiorari, because a judgment on the pleadings does not raise questions of fact, as the judgment is based on pleadings alone and the judgment is final

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Summary judgment What is summary judgment? o There is no genuine issue as to a material fact. Memorize this phrase. o When is there no genuine issue? When the issue does not require presentation of evidence for its resolution, and was just set up as sham, fictitious, contrived, set-up in bad faith, or is unsusstantial What is the difference between this and the answer does not tender an issue? o There is no issue as to a material fact (note: not on the issues) But can you have a summary judgment based on a tort? o No. Because damages here are unliquidated, and the court has to hear the case. When can there be summary judgment? o Declaratory relief o Liquidated sum of money or action to recover a debt The court could rely on documents, papers, affidavits, depositions. o Ex. X wants to make it appear that he does not owe Y anything, but there is a document where he admits the obligation. Y must file motion for summary judgment and attach the document. o N.B. these attachments must be sworn or certified copies o What must the affiant show? The he is competent to the matters stated therein, that the facts are the admissible in evidence, and it is based on personal knowledge What is the requirement for the motion and hearing? o Written motion at least 10 days before it is heard o When can the opposing party serve opposing affidavits? At least 3 days before the hearing Wood Tech v. Equitable: Gives distinction of JOP and SJ. On SJ, there could be an issue, but it is ostensibly sham or fictitious. In JOP, the answer does not tender an issue, or it admits the material allegations on the claim. There is no dispute. Promissory note with no date when it is due and demandable. X owes Y 500K. Y sues X. X claims its not yet due! Is this

something that would lead to summary judgment or judgment on the pleadings? o Summary judgment; although there appears to be an issue (X made an issue out of nothing). It is ostensible, but its actually sham or fictitious. o Cannot lead to judgment on the pleadings, because there was no admission of material claims. What is the remedy of the aggrieved party against a summary judgment? o Appeal o Except if there is already a writ of execution, then certiorari might be more applicable (because there is no plain, speedy, available remedy)

Judgments Can the court change its judgment? o Before it becomes final (ex. appeal period), it can as a matter of right. o Once it becomes final, only clerical errors can be corrected. What is immutability of judgments? o General rule: judgments are immutable; they cannot be modified once final and executory When is the judgment considered promulgated or rendered? o Filing with the Clerk of court, not mere signing What are the exceptions? o 1. Nunc pro tunc antedated judgment, when delay or error is due to the courts fault o 2. Clerical or typographical errors o 3. Void judgments o 4. But some judgments cannot really obtain finality like support Is the judge required to take notes during course of hearing in order to be able to render valid judgment? o No. Is it required that the judge who heard the case is the same who renders the decision? o No. But the judge must personally review it.

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Is filing of memoranda by the parties (after the trial, after submission of evidence) required/mandatory? o It is not mandatory. It is not essential. o Non-submission is not fatal. What is a separate judgment? o If there are many claims, the court can render judgment on one, and the action proceeds with regard to other claims o Ex. In expropriation there are two judgments: 1. Authority to expropriate 2. Just compensation o Ex. Summary judgment (one case has several judgments summary as to the one with no genuine issue, and trial over the ones with genuine issue) What is the difference between a separate judgment from a several judgment? o Several refers to parties, separate refers to claims Can the court render a judgment to a non-juridical entity? o Judgment will be against the members, not the entity itself The judgment awards attorneys fees. What is required for it to be valid? o The court must state its factual, legal, and equitable justification. They are not recoverable as a matter of right. If there is no factual basis, then the award of attorneys fees is void. What is required for a memorandum decision? o It must attach the findings of the lower court in an attached annex which is made an indispensable part of the decision. o Remote reference is not allowed. What is a sin prejuicio judgment? o It is not binding, because it makes reservation in favor of some parties as to the right to do something in a separate and further proceeding What is a mittimus? o Final process for carrying into effect the decision of the appellate court and the transmittal to the court a quo. It is predicated on the finality of judgment.

Execution

When is execution a matter of right? o Judgment is final and executory USUAL CASE Ex. period appeal has already lapsed When is execution a matter of discretion? o For good reasons, when it is not yet final and executory o Execution of several, separate, or partial judgment Which court issues the writ of execution? o Court that rendered judgment o RTC issued a decision, it was appealed to the CA, then to the SC. Who issues the writ of execution? The RTC the court of original jurisdiction o Are there instances wherein the writ will be issued by an appellate court, or a court other than that of original jurisdiction? In the interest of justice, you can apply to the appellate court. But the general rule is that it is still the court that rendered the decision. o Can the CA issue a writ of execution, other than in this instance? When it exercises original jurisdiction. Where do you file a motion for execution? o File it in the court that rendered the judgment. o Can it be filed with the appellate court? Same with above. Do you need to file a bond to apply for discretionary execution? o The obligor needs to file a supersedeas bond to stay discretionary execution; but the obligee does not need to file a supersedeas bond to apply for discretionary execution. o What does the obligee need to present then? Proof showing good reason o What are examples when discretionary execution vest? 1. Perishable goods 2. Old age + sickness [?] When does judgment become final and executory? o A final judgment or order is one that finally disposes of a case. This is the only thing that could be subject to execution. What is the difference between discretionary execution and execution pending appeal? o They are the same. And both require good reasons.

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Should the writ of execution conform to the dispositive portion? o Execution must conform to the dispositive portion. What is reproduced in the writ is the dispositive portion of the judgment. (Intramuros) Is a full blown trial required for a motion for execution? o No. Can execution pending appeal be applied for to the TC after the appeal has been perfected? o For as long as the TC has jurisdiction over the case. o See Rule 41. [This includes execution pending appeal, provisional remedies, etc.] Do you need a bond to stay a writ of execution that was issued as a matter of right? o No. You cannot stay it anymore even with a bond. Its a matter of right. o What is the exception? Get an injunction or TRO, claiming GADALEJ. What are the judgments not stayed by appeal? o Injunction, receivership, accounting, support, other judgments saying its immediately executory Can an MR stay a motion for execution? o The provision only says an appeal can stay a judgment theoretically, jurisdiction is still with the court of original jurisdiction. o But there is no clear answer. In an ejectment case, which court issues the order of demolition? o The court of original jurisdiction, i.e. the MTC o What is the exception? Mina: Discretionary execution can be entertained by the RTC. Who has to make reports? o The sheriff, on any matter of execution, esp. the conduct of such. Is a motion for execution indispensable before the court can execute? o Yes, even for those immediately executory in nature. o Cagayan de Oro: A lawful levy for execution is needed before there can be a sale can be effected.

Can the court motu propio issue a writ of execution? OCA v. Corpuz: Court on its own, cannot issue a writ of execution without motion of another party What is revival of judgment by an independent action? o If you went beyond 5 years from entry of judgment, but are still within the prescriptive period, you can file an independent action to execute. When can you file a motion for execution? o Within 5 years from entry of judgment After lapse of period of ten years, can you still revive it? o No. o Is it always ten years? YES. This is the flat prescriptive period for judgments. Death after judgment: o If the judgment obligee dies, then the executor/administrator applies for execution o If the judgment obligor dies, and judgment is for recovery of real/personal property there is a lien over his property o What if levy has already been effected? Proceed to sale of the property to satisfy the judgment. o What if the judgment is for money, not property? File a claim against the estate Section 8: Contents. o Do the contents have to always be there? No. Only to the extent applicable. Money judgments o Payment must be in what form? In cash. o Payment must be made to whom? To the judgment obligee, if available What if he is not available? To his representative What if he is not available? To the sheriff o Can payment be effected not by cash (Ex. check or PN)? Certified bank check is allowed Or any other form of payment acceptable to the latter

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What if there is no cash? Go to Levy on real or personal property o What will be disposed first? Choice of judgment obligor If he doesnt make a choice, personal property is prioritized over real property o What if there is no property? Go to Garnishment o Custodian of the funds/deposit/royalty has to make a report. o How many days to report? 5 days from receipt of notice. The custodian/manager has 5 days to report if there is money. o What does the court do next? It issues an order requiring transfer of funds. o Can you garnish without prior demand of payment? No. Specific acts o If the court requires the obligor to do something, but he refuses, what happens? The court can require another person to perform it. o If the other person does not comply? The court may consider that it has been DEEMED complied with. Give an example. The court orders that there must be execution of deed of sale in favor of Y, done by X. X refuses. The court orders Z to perform it. Z refuses. The court will deem it complied with. This deed of sale will be forwarded to the Register of Deeds or whoever/whatever office o Can an order for demolition be given along with the writ of execution? No. It is punitive in nature, so there must be a hearing. How is this accomplished?

There must be motion of judgment obligee after due hearing and after the former has failed to remove the same within a reasonable time fixed by the court o When can there be contempt? ONLY applies for special judgment, and there is refusal to comply. What are the properties exempt from judgment? o Family home, homestead, and the land If you mortgaged your Family Home, will it still be exempt from execution? No. What are homestead lands? Public lands given to people giving them a chance to cultivate o Libraries of professionals not beyond 300K o Furniture for the family not beyond 100K o Beasts of burden (up to 3) o Tombstones What about mausoleums? No. o [Among others] When can you apply for a motion for execution? o Section 14. This also tells you the life of the writ. o What is the life of the writ? 5 years, before it expires. Sec. 15-34: o Important parts: Requirements of sale Certificates of sale Redemption Redemption period Who will be in possession of the property sold in public sale Who will be entitled to fruits/profits of the property What if after participating in the sale, you are unable to take possession of the property remedies o What are the requirements for sale?

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TWO NOTICE REQUIREMENT: one to the judgment obligor, one to the public Public posting in 3 conspicuous places (or even by publication if assessed value of real property is 50K+) What if it is a perishable good or personal property? Perishable goods within reasonable time (no strict timeframe) Personal property at least 5 days notice Real property posted for 20 days o N.B. not at least What if the assessed value of the real property exceeds 50,000, what is needed? There must be publication Should you notify the judgment obligor? Perishable goods just notice before the sale In all cases, notice at least 3 days before the sale What time must the sale be? 9 am to 2 pm, and it must be in the office of the Clerk of Court. But usually, it is done outside the hall of justice What if it is personal property capable of delivery? It must be done in the place where the property is located What is the consequence of selling without notice or defacing/removing the notice? Penalty of 5000 pesos recoverable in the same action What if there is a third party claimant? He asserts his claim in the proceedings through an affidavit of title Served on the levying officer Serve copy to the judgment obligee What is the effect? The officer is not bound to keep the property

What is the remedy of the judgment obligee? Post a bond approved by the court to indemnify the claimant (value is not less than value of property) In such a case the officer shall not be liable for damages for taking/keeping the property if the bond is filed When can there be a claim of damages for taking or keeping of the property? Only within 120 days from the date of filing of the bond N.B. The claimant is not precluded from filing a claim to the property in a separate action Is a certificate of sale mandatory for personal properties capable of manual delivery? No, it is not. For real properties, you need a certificate of sale. What are the contents of a certificate of sale? 1. Particular description of the real property sold 2. Price paid for each distinct parcel or lot 3. Whole price paid 4. Statement that right of redemption expires 1 year from the date of registration of the certificate of sale registered with the ROD Can you redeem personal property sold on public sale? No. Personal properties cannot be redeemed, only real properties. Who can redeem real property? The judgment obligor can redeem Who else? Those who have interest on the property, either by credit, encumbrance (redemptioners) What is the distinction? Judgment obligor always has a period of 1 year, non-extendable

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o o

Once the judgment obligor redeems, no further redemption is allowed. Redemptioners may redeem, but it may again be redeemed from them within 60 days by another redemptioner What about the redemptioners? o Their rights were never extinguished. It still exists, over the property. If the judgment obligor does not redeem, can the redemptioners redeem beyond the 1 year period? o No. This is the view sir subscribes to, even if some commentators say there can be endless redemption beyond the 1 year period in 60 day intervals. But sir said that after 1 year, the last redemptioner gets the property. Who has possession during redemption period? Obligor. Who is entitled to fruits and profits? Obligor. N.B. The obligor cannot change the nature of the property during the period. He must not modify it. How must redemption be made? It must be willingness and intention coupled with tender of payment. Willingness and intention without tender is not enough. Case: The redemptioner wanted to redeem in installments, and not full payment. This was held to be invalid. Beyond the redemption period, can it still be redeemed? It is not anymore redemption as contemplated by law; just a contractual arrangement between the redemptioner and whoever purchased the property.

Amount subject to sale + interest + taxes, if before the one year period; however, after the period is over, the amount can be dictated by the parties freely. o I purchased property in a public sale, but someone with a better interest came forward, so I wasnt able to get possession and transfer of the property. But I already parted with my money, and paid the sheriff. What should I do? 1. You can recover its value in the same action or separate action 2. You can have the judgment revived in the name of the purchaser he steps into the shoes of the judgment obligee. In this case, he can execute just like any other judgment obligee. [So if he cannot pay, he can levy, and if not, he can garnish.] In execution, you need to remember the word satisfaction. Sections 44 and 45 have this end in mind. The books of the case will not be closed, even if you won, if judgment has not yet been fully satisfied. What are the remedies of the judgment obligee if the writ of execution as returned shows that the judgment has not been satisfied? o 1. Call the judgment obligor and have him examined in court, through subpoena N.B. only if the residence of the judgment obligor is in the province or city of the court o 2. Call on the stand the debtor of the judgment obligor to be examined in court, through subpoena What if in the course of examination, we find that he owes the obligor? He can then be charged. NB. Obligor/debtor of the judgment obligor may pay what he owes directly to the sheriff, and the sheriff issues a proper receipt enough to discharge o 3. Amortization of payments o 4. Court appoints a receiver over the property Akin to the provisional remedy on receivership

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This is the only provisional remedy that can be given by the court even after judgment The reason: to preserve the property. 5. If it is later discovered that the obligor has an interest over a certain real property, the court can order a sale to satisfy the judgment Who is ordered to sell it? The receiver The property must be within the place in which proceedings are had N.B. the interest over the real property must be ascertainable without controversy 6. If person who has possession of the property of the obligor refuses to recognize the title of the obligor: 1. The court may issue an order that the judgment obligee institute an action for recovery of the interest or debt against the judgment obligor 2. The court can forbid a transfer or other disposition of the property within 120 days from notice of the order 3. Punish the judgment obligee for failure to comply with the order N.B. ironically, it is the judgment obligee subjected to punishment for failure to comply N.B. Atty. Salvador said the sale must be within the 120 days provided by the order

In sum: o 1. Examine obligor o 2. Examine obligors obligor o 3. Amortize o 4. Receivership o 5. Sale of obligors interest o 6. Obligee action against obligors adverse claimant What are the 3 scenarios to show full satisfaction? o 1. The writ of execution has been returned to court Every 30 days, the sheriff has to report on the status of the writ o 2. Written acknowledgement of the judgment obligee or counsel

3. When there is an endorsement on the face of the records of the case Even if the other party does not consent, but the court believes that it has been satisfied, the court may enter that it has been satisfied. What are the effects of domestic judgment? (MEMORIZE) o 1. As against a specific thing, condition/status/relationship of a person conclusive upon it As an exception to this, where a will has been probated, is death of the party conclusive? Its only presumed o 2. Res judicata Baretto v. CA: Two aspects of RJ 1. judgment bars the prosecution of the same claim, demand, or cause of action, 2. Precludes the re-litigation of a particular fact or issue in another action between the same parties in a different claim or cause of action o 3. Preclusion of issues/conclusiveness of judgment As to other litigation actually and necessarily included therein What are the effects of foreign judgment? o 1. Conclusive as a specific thing o 2. Presumptive evidence of rights between parties How do you enforce foreign judgments? o 1. File a verified petition in the RTC o 2. Show there was jurisdiction of the court over the subject matter and over the parties o 3. Prove the law of that jurisdiction How do you impugn that foreign judgment? o 1. Want of jurisdiction/notice to party o 2. Collusion o 3. Fraud o 4. Clear mistake of law/fact How about foreign arbitral awards? o You file an action for recognition. It is not a foreign judgment.

POST-JUDGMENT REMEDIES Motion for reconsideration

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Is an MR a prerequisite to appeal? o No. In a case involving summary procedure, is MR allowed? o No, it is a prohibited pleading How many days to file? o 15 days o Can it be extended? Cannot be extended This rule has never been changed. You cannot file an extension on an MR o So whats the remedy? Some lawyers suggest filing a supplement. But actually, there must be a new event or fact that arises to do this. So this is dangerous. How long must an MR be resolved? o Within 30 days Can there be a partial MR? o Yes, when the court finds that the MR affects only a part of the judgment (ex. just one of the issues). Distinguish an MR from an MNT. o A. The grounds are different. In MNT, the grounds are FAME and newly discovered evidence. What fraud is needed here? Extrinsic fraud. What is mistake? Mistake of fact in good faith If theres a mistake of law, the remedy is an MR, not MNT What is newly discovered evidence? 1. It must be material 2. It was not available during trial despite exercise of due diligence 3. If considered by the court, it could later/change the result o B. The effect is different. An MR involves a trial de novo, if approved. o What are the grounds for MR? 1. Evidence not sufficient to support the judgment

2. Excessive damages 3. Decision contrary to law What is the fresh period rule? o Neypes: After denial of an MR, the period returns to 15 days Does the Neypes ruling apply to other kinds of appeal? o No. Just Rules 40 and 41 (ordinary appeal). Why? What about the others? o Rule 42 (petition for review) no need for Neypes ruling, because the provision itself provides for it The petition shall be filed and served within 15 days from notice of the decision to be reviewed or of the denial of the petitioners MNT/MR filed in due time o Rule 43 (review of QJA) no need as well Same wording as Rule 42. o Rule 45 (petition for review on certiorari) Same wording (15 days from notice of judgment/final order or of denial of MNT/MR) How many times can you file an MR? o Just once How many times for a MNT? o Can be multiple, as long as on grounds not existing when the first MNT was filed What is the effect of granting an MNT? o There will be a trial de novo. o The evidence so far presented may be used in the new trial without retaking Can there be MNT in the appellate court? o Yes, but with different rules and only to the Court of Appeals (not all appellate courts). o Rule 53 covers MNT in the CA. So that MNT is different from the MNT here. The MNT in the Court of Appeals only has one ground: newly discovered evidence. o There are different periods as well In the MNT in trial court: 15 days from judgment In the CA: for as long as its an active case (no need to wait for a judgment in the CA as long as the CA has jurisdiction) Is there a MNT in the SC? o Rule 56

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As a rule, an MNT cannot be entertained in the SC. But it is left with the sound discretion of the court if it feels that it should do it in the interest of justice.

Petition for relief How many kinds of petition for relief do we have? o Two. o 1. From judgment o 2. From denial of appeal Where do you file it? o From judgment: before the court that rendered judgment, not before the appellate court o From denial of appeal: from the court that gives due course to an appeal N.B. So if its ordinary review, to the lower court. If its a petition for review, then to the appellate court. A lawyer forgot to file an appeal on time. He filed late, and it was denied. What do you apply for? o Cannot use petition for relief from denial of appeal, because there is no ground. He just forgot; he wasnt prevented. o You file an MR. o Why? You file a petition for relief from denial of appeal if you were prevented from filing it. Here, he was not. What is the time period for filing petition for relief? o Within 60 days from knowledge from the judgment of order (count from entry of judgment) o BUT NOT more than 6 months after entry of judgment/order o N.B. both periods must apply (60 within 6) The sixty days can only move around the six months. If you found out the day before six months expire, you are left with one day, not 60 days. Can you file a petition for relief from judgment when there is still an available remedy of MR, MNT, or appeal? o No. As long as there are still available reliefs, you cannot resort to petition for relief from judgment. Take note, that there must be entry of judgment, which means if there is no final judgment yet, you can still do an MR/MNT/appeal.

Where else does FAME apply? o 1. MNT o 2. Petition for relief from judgment/denial of appeal o 3. MR to court order declaring defendant as in default (failed to appear in pre-trial) o 4. Motion to lift order of default (failure to file an answer) What are the grounds for annulment of judgment (Rule 47)? o 1. Extrinsic fraud Prescribes 4 years from time of discovery o 2. Lack of jurisdiction (covers both SM and person) N.B. This is the only provision that uses lack of jurisdiction both ways Mr. X died, leaving an estate. Juan claims to be the sole heir. The estate court adjudicated the entire estate in favor of Juan. Judgment became final and executory. After 2 months, the rest of the heirs who learned of the judgment came forward and filed a motion to set aside the judgment. Court denied the motion to set aside the judgment. So they went to the CA on an annulment of judgment. (N.B. a petition for annulment of judgment is an original action; it is not an appeal. You file this for a decision of the MTC, to the RTC and for a decision of the RTC, to the CA.) Did they use the proper remedy for filing petition for annulment of judgment in the CA and not petition for relief to the court that issued the judgment? (Alaban v. CA) o Petition for relief. o 1. Although section one states that only a party may file a petition for relief from judgment, settlement of estate is an action in rem. It requires publication, so the heirs have been notified and deemed as parties. o 2. The learned of the judgment 2 months (60 days) from learning of the judgment. So the proper remedy is petition for relief, since it falls within the period. N.B. Remember this: petition for relief is filed by a party to a case. Annulment of judgment can be availed of even by a non-party to a case.

Appeals 1. Appeal is a statutory privilege o Neither a natural right nor a constitutional right

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There is right to due process. But the right to appeal an adverse decision is not part of the right to due process. o Thus you cannot deviate from the requirements made mandatory under that law that gave you such privilege. 2. Matter of right (qualified) o One can technically view appeal as a right as long as there is a statute providing you such privilege already laid down o Ex. judgments of MTC and RTC exercising original jurisdiction So if the RTC exercised original jurisdiction, the CA must entertain the appeal 3. Not a matter of right o Ex. appealing from judgment of a court already exercising appellate jurisdiction o Ex. MTC (original) RTC (appellate) One may file a Petition for Review technically, this is still a matter of right [at least, to file, from ones point of view] But whether it is given due course by the higher court or not is another issue there is discretion not to entertain the petition for review o Ex. Rule 42, Rule 43, Rule 45 4. Purpose of appeal o Review errors of judgment Errors of fact or errors of law One is talking about a court having jurisdiction over the person and subject matter Goal: to achieve reversal or modification of judgment o Contra: errors of jurisdiction Goal: set aside judgment. This is covered by Rule 65. ONLY the defenses that were put up in trial court may be elevated for appeal. Issues not discussed below at all, in the pleadings, may not be elevated for appeal. (Rule 44, Sec. 15) o How are issues raised in the trial court? Raised in the pleadings o May that issue not included in the pleadings be tried nonetheless? No. Except if one moves to amend the pleadings to conform to evidence or authorize its presentation

A party submits evidence outside the issues raised in the pleadings. The other party accedes to it. How does the other party show that he did not object to the raising of issues outside the pleadings? Submitted evidence on that issue too Cross-examination Remaining silent A question of jurisdiction is something that you can question anytime. (A dragon that may be slain each time it rears its ugly head.): o It doesnt matter if you raise it on appeal or through SCA; the point is you can raise it to a higher court. What is the exception? o Estoppel. For instance, X failed to object to jurisdiction of the tribunal and actively participated in the trial. If a party to a case got a smaller amount than prayed for, but he won the case, can he appeal? o Yes, he was not satisfied with the award. It does not follow that just because a person won the case, he is not allowed to appeal. In a criminal case, the accused is convicted. May he appeal? o Yes. May the State appeal on the ground that the penalty imposed is not what the prosecution wanted? o Yes. Appeal is a remedy. A remedy to what? o An appeal may be taken from a judgment or final order that completely disposes of the case, o Or of a particular matter therein when declared by these Rules to be appealable. (Rule 41, Sec. 1) Ex. special proceedings or SCAs usually allow multiple appeals; e.g. settlement of estate: probate of will, appointment of executor, etc. o Why does the provision not put the word final before judgment? Because if the judgment is final, then it would be executory otherwise. To remove this confusion, then the provision does not state final o Why does the provision put final before order?

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Because the provision wants to contrast this against interlocutory orders, which are non-appealable. o Is there a distinction between judgment that completely disposes of the case and final order that completely disposes of the case? Judgment is based on the merits of the case, after a full-blown trial and evaluation of evidence. Final order is based on adjudication not after going through a full blown trial. Ex. MTD or demurrer The defendant files an answer but it did not controvert the allegations in the complaint. What should the plaintiff do? o File motion for judgment on the pleadings (Rule 34). o This is a final order that completely disposes of the case, and is appealable. What matters cannot be appealed? o 1. Order denying petition for relief from judgment: Remedy is any of the Rule 65 remedies o 2. Order denying interlocutory order: Judy Ann Santos v. People MTQ denied. Filed MR to the denial of the MTQ. HELD: The denial of the MTQ is an interlocutory order which is not the proper subject of appeal or petition for certiorari. There would be no procedural void: A) There can still be appeal of the main case B) There can be petition for certiorari of the main case if there is GADALEJ Two reasons why interlocutory order cannot be appealed: A) Still subject to modification or rescission by the court o Ex. for preliminary injunction, may file for motion to discharge the injunction or may file counter bond B) To avoid multiplicity of appeals o 3. An order disallowing or dismissing an appeal. Disallowing an appeal this is fairly obvious Dismissing an appeal

o o

This does not refer to adverse decisions. It just gets confusing for many because the appellate courts use the term hereby the appeal is dismissed if a party loses an appeal. It actually means the same thing as disallowance; so for instance, there was no payment of docket fees, etc. 4. An order denying a motion to set aside judgment by consent, confession, or compromise on ground of duress, fraud, or mistake or any ground vitiating consent. What is unique about judgment rendered by court based on compromise? It is immediately executory. For instance, a party is defrauded by the other party in a compromise agreement. He files a motion to set aside the judgment. It was denied. What is the remedy? He cant appeal, but can avail of Rule 65. 5. Order of execution 6. Order dismissing an action without prejudice What is a dismissal without prejudice? One that does not bar the party from again filing the same action disposed of. MTD was filed by the defendant on the ground of failure to state cause of action, and it was granted. Is it appealable? No. It is dismissal without prejudice. MTD based on statute of limitations: dismissal without prejudice? No. It is a dismissal with prejudice, and therefore appealable, because the action has prescribed, and cannot be re-filed. What are the four grounds where dismissal is with prejudice? 1. Statute of limitations 2. Statute of frauds 3. Res judicata

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4. Payment, waiver, extinguishment, abandonment o 7. Judgment or final order in an action with several parties or rd claims, counterclaims, cross-claims, and 3 party claims, when the main case is pending unless the court allows General rule: wait for the main decision. Even if the main decision comes out 2 years after, the party receiving an adverse decision may still file an appeal in time. In all of the grounds stated therein, where there is no appeal allowed, what is the proper remedy? o Rule 65. What ground has been deleted? o Order denying MNT or MR this used to be the first in the enumeration o SC-07-7 (Dec 2007) removed this from the enumeration. o Does this mean that you may appeal from the order denying the MR or MNT? No, still not. o So why was this removed from the enumeration? So the parties cannot avail of the last paragraph of Sec. 1 (Rule 65 certiorari, prohibition, mandamus) to question the denial of the MR or MNT. But this is a bit unfair, because for instance, your MNT was denied even if there actually was new evidence you dont have certiorari as a remedy anymore! Although nothing prevents filing a separate petition for certiorari to question this act by the TC. What are the three modes of appeal? o 1. Ordinary appeal (Rules 40 and 41) o 2. Petition for review o 3. Petition for review on certiorari What are the ordinary appeals? o 1. Notice of appeal o 2. Record on appeal When is there record on appeal? o 1. Multiple appeals o 2. Special proceedings

What happens to the title of the case? o The title remains the same. So the plaintiff is still mentioned first, and the defendant next. But the designation just changes. Ex. Glenn Tuazon, plaintiff v. Rensi Pua, defendant Glenn Tuazon, appellee v. Rensi Pua, appellant or Glenn Tuazon, appellant v. Rensi Pua, appellee o What if it goes up to the Supreme Court? When one goes up to the Supreme Court, it becomes petitioner v. respondent. And the title need not remain the same. You do not include the CA as a respondent when you appeal to the SC, still the same private party. (The SC already issued a circular for this.) The lower court only becomes a respondent, for instance, in a petition for certiorari. If there is GADALEJ, for instance, the defendant is the court. The private respondent just files the response on behalf of the public respondent. o Under Rule 43 (Q-J), what is the rule? There is no set rule. It can be appellant/appellee or petitioner/respondent. o What if both parties appeal? Plaintiff-appellant v. Defendant-appellant But in their briefs, they would refer to the other party as appellee

Ordinary appeals (Rule 40-41) Period to appeal? o 15 days for notice of appeal, from receipt of notice of the judgment o Receipt by whom? The party or the counsel o If there was notice sent to both the party and the counsel, and the notice to counsel arrived earlier, what is the reckoning point? The notice to counsel, because notice to counsel is notice to the party.

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If you have multiple counsels, and the court clerk sent a copy to all such, what is the reckoning point? Upon the receipt of the lead counsel, as opposed to collaborating counsel. If both are co-counsels, then receipt by either starts the reglementary period. o Can you extend the period of 15 days? Not extendable But if you file an MR and it is denied, following Neypes (as adopted by SC 07-7), you get a fresh period. X set a hearing for MNT on June 20. The court ruled on July 6, denying the MNT. X got a copy on July 9 by registered mail. X can still appeal. It is immaterial how long the court took to resolve the MNT. Fresh period of 15 days to appeal. o X, instead of filing an MR, filed a motion for extension to th file the MR. He filed on the 14 day. It was denied outright. Having the motion denied, how many days remain to file a notice of appeal? This is a prohibited motion, so it should be treated as if it were not filed. The period continues to run. If it th was decided beyond the 15 day, then X is barred. When is the period of appeal 30 days? o Record on appeal (to be discussed in Rule 41) o But you must file both notice and record. When is the notice of appeal filed? There is no separate time frame for the notice of appeal. Both can be filed within the 30 day period. o Can you extend the period of 30 days? No Except when there is an authorized alteration or modification of the record What is the period to appeal for Habeas Corpus cases? o Within 48 hours o What about Writ of Amparo and Writ of Habeas Data cases?

Within 5 working days, Petition for Review on Certiorari (Rule 45) but can raise both questions of fact and law Appeal docket fee and other lawful fees when and where do you pay? o Where: to the court that rendered the decision o When: within the period to take appeal (so same as 15/30) o Note: this above requirement is MANDATORY AND JURISDICTIONAL. o What if the notice was filed within 15 days, but the docket fees were not paid within the same time (ex. 18 days)? The dismissal is not automatic the trial court still retains jurisdiction. It can decide whether to decide to dismiss the appeal (failure to comply with a mandatory and jurisdictional requirement) or to continue with the appeal. o What if he paid but the fees are short? What is mandatory and jurisdictional is the payment of the whole docket fee. Usually the judge gives an order giving the party time to comply with filing the entire docket fee. Contrast the Neypes fresh period with other fresh periods in Civil Procedure th o Filed motion to dismiss on the 13 day. It was denied. How many days remain for you to file an answer the 2 days or a fresh period? Fresh period of 5 days. (Rule 16) th o If it is a bill of particulars, filed on the 13 day. 2 days remain or fresh period? Fresh period of 5 days. (Rule 12) If the notice of appeal to the MTC did not make mention to which court the appeal will go to, is it fatal? o No. The law will fill the gaps that it would be the RTC hearing the appeal. If the notice of appeal to the MTC was flawed enough to state that the appeal will go straight to the Supreme Court, because he is just raising pure questions of law? o The court may have discretion to send it to the RTC instead. But of course, this is up for question.

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If a court must to make a ruling that the appeal is erroneous, who makes that decision? The trial court or the erroneously selected higher court? o Higher court. What if there was no copy of the notice filed to the other party? o It is a fatal defect. What is a record on appeal? o Its a sequential compilation of the pleadings, orders, etc. of the judge. o Unlike a notice of appeal, which is just a statement of: a) when you received the decision, b) that you paid appeal docket fees within period, and c) you intend to appeal When is a record of appeal required? o 1. Special proceedings o 2. Separate or multiple appeals if allowed by law or the rules For separate appeals, the judge decides if it is allowed. GENERAL rule: wait for all the claims to be decided (in a case with multiple claims). Can there be record on appeal be required for an appeal coming from the MTC? o Yes. For example, settlement of estate of decedent who resided outside MM, and 300K or less. Why is there a need for approval of the Record by the trial court? o The court must determine whether the record of appeal is complete. o Note: the copy furnished to the other party also gives him chance to scrutinize the completeness of the record. When will you not indicate which documentary or testimonial evidence you are including in the record in the reference? o When ALL of the testimonial and documentary evidence is included. One just has to make a statement to that effect. When is appeal perfected? o Upon filing notice + payment of docket fees When is the trial courts jurisdiction lost? o Upon the perfection of appeal by all the parties in due time OR upon the lapse of the reglementary period given for them to appeal lapses How about record on appeal?

Not upon mere filing of notice, but upon APPROVAL of the record on appeal When does the court lose jurisdiction over the whole case? o Only upon final order or decision of the case o Because the record on appeal is only about a particular subject matter in the trial If you go from the MTC to the RTC, what is the process? o Take note that the RTC is an appellate court here. o Parties file a memorandum to the RTC. The RTC will not reexamine the evidence and witnesses. o Period for filing of briefs? 15 days, appellants memorandum (from notification of RTC clerk of receipt of complete record/record on appeal) 15 days, appellees memorandum (from receipt of appellants memorandum) In Rule 41, the court of original jurisdiction is the RTC, and the appellate court is the CA. Why is it also an ordinary appeal? o Because its only been decided on once, and will be reviewed for the first time. o What is the procedure in the CA? Filing of appellants and appellees brief. The procedure is found in Rule 44, not 41. o Period for filing of briefs? 45 days, appellants brief (from receipt of notice of the clerk that all evidence have been attached to record) 45 days, appellees brief (from receipt of appellants brief) 20 days, for reply (from receipt of appellees brief) Coming from a loss in the RTC (exercising original jurisdiction), what are the available remedies? o 1. Ordinary appeal o 2. Petition for review on certiorari (Rule 45) For pure questions of law o 3. Record on appeal + Notice of appeal Differentiate: o Petition for certiorari (Rule 65) errors of jurisdiction o Petition for review (Rule 42 and 43) second level appeal

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Petition for review on certiorari (Rule 45) pure questions of law When can you NOT go straight to the SC despite the appeal being of pure questions of law? o If it is coming from the MTC, it has to go to the RTC first, then CA, then SC. Cannot go straight to the SC. o N.B. If the RTC is exercising appellate J (came from the MTC), you cannot go straight to the SC by Rule 45. If original, you can go straight to the SC by Rule 45. A case was filed in the MTC, but it was dismissed for lack of jurisdiction. There was notice of appeal filed, and it was held that the RTC had jurisdiction, which heard the case. Is the RTC performing original or appellate jurisdiction? o Either argument seems defensible. o As a practitioner, what would be more protective of your client, Rule 41 or 42? Rule 41 seems precarious. Play safe, go for Rule 42. Although using Rule 42 would be more burdensome, since you have to come up with your entire assignment of errors within 15 days (rather than just filing the notice). o

Petitions for review (Rules 42-43) What are the two kinds of petition for review? o Rule 42 o Rule 43 (quasi judicial agencies) o What about petition for review of the decisions of the Prosecutor? It is technically not a petition for review because it is for criminal procedure, and is in the executive branch When does Rule 42 apply? o There is denial in the MTC, and then denial in the RTC, and then it goes up to the CA through Petition for Review. When does Rule 43 apply? o Body with original jurisdiction is a quasi-judicial agency o Is the enumeration in Rule 43 of QJAs exclusive? No. Particular rules:

HLURB Office of the President CA NLRC CA, but under Rule 65, not 43 DARAB CA CTA CTA en banc SC COMELEC, COA SC (Rule 65) CSC CA (Rule 43) OMB CA (Rule 43) for admin cases OMB SC (Rule 65) for non-admin cases DOJ Prosecutors DOJ Secretary (petition for review) CA (Rule 65, based on GADALEJ) N.B. this is only for civil procedure. The rule for criminal procedure differs (involves Office of the President) If the issues you are going to raise are questions of fact (ex. whether there was cultivation of the land, to the DAR), where should he bring that problem? o To the CA (of course, exhaust admin remedies first) If the question you are going to raise is purely legal, where do you go? o Still to the CA o Sec. 3 (whether the appeal involves questions of fact, law, or mixed questions of fact and law) Why is Rule 43 still called petition for review even if the QJ-A is exercising original jurisdiction? o Because the QJ-A is presumed to have the proper expertise, beyond what the courts possess. The presumption is definitely against the one appealing. o This is why the CA does not automatically provide due course. What are the periods? o Same for Rule 42 and 43 15 days o Can you ask for an extension? Yes, you can ask for one during the reglementary period. Upon motion and payment of docket fees o Can you ask for a second extension? General rule is that no further extensions are allowed, except for the most compelling reasons. What are the requirements of a Rule 42? o 1. It must be verified o o o o o o o o o

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2. Attach a copy of the decision or a duplicate original 3. Affidavit of material dates Date of receipt of decision, date of filing of MR, date of denial of MR o 4. Contents of petition: Parties Issues, grounds relied upon, errors Explanation if service is other than personal o 5. Furnish RTC and other copy a copy of the petition o 6. Pay docket fees to CA o What are some causes that will dismiss the petition? 1. The jurat does not comply with the requirements of the notarial law 2. Failure to attach registry receipt What are the requirements of a Rule 43? o SAME, but you attach all certified true copies o Why? Because it came from a QJA, the court cannot verify if the issued resolutions, etc. are genuine Is a Certification of Non-Forum Shopping required? o Yes, for both Rules 42 and 43. What actions can be taken by the CA? o 1. Require respondent to file comment within 10 days of notice Not motion to dismiss o 2. Dismiss petition outright if: A) patently without merit B) manifestly filed for delay C) too unsubstantial to require consideration What are the requirements of the comment to be filed by the adverse party? o 1. 7 copies o 2. Accompanied by relevant certified true copies of material portions of record o 3. Contents: A) whether or not he accepts statement of matters B) point out insufficiencies and inconsistencies in statement of matters C) reasons why petition must not be given due course o 4. Copy given to petitioner

o o

What is due course? o That which is given when the CA finds prima facie that the lower court has committed an error of fact or law that will warrant reversal or modification of decision o You have to wait for a notice whether the CA is giving due course to the petition. o When does the CA decide w/n to give due course? After submission of the comment or expiration of date to file it. Does the appeal stay the implementation or execution of the judgment of lower courts in a Rule 42 petition? o Yes. o Exception: summary proceedings in MTC Ex. Ejectment from MTC. The judgment in this ejectment case is immediately executory. But it can be appealed to the RTC. However, even pending appeal, it is still executory. BUT it can be stayed by posting supersedeas bond and making deposit of monthly rentals and fair compensation for usage. Does the appeal stay the implementation or execution of the judgment of QJAs in a Rule 43 petition? o QJ-As decisions is NOT stayed, as a general rule. o Although each law creating the administrative agency will provide a specific rule as to whether its decision will be stayed by appeal to the CA. BUT remember the general rule. It will not be stayed. o Why is it that the general rule under Rule 42, is that the judgment of the RTC will be stayed pending resolution, whereas in Rule 43, it will not be stayed? Because there is presumption of correctness on the matter of expertise of the QJ-A. When is there elevation of record from the RTC? o Only when CA deems necessary o May order clerk of RTC to elevate records 15 days from notice When is there perfection of appeal? o Upon timely filing of petition for review + payment of docket and other lawful fees o When does the RTC lose jurisdiction over the case?

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Perfection of appeals + expiration of time for others When can the RTC issue orders under its residual powers? Before giving due course by CA o Residual powers: 1. Protection and preservation of rights of parties on matter not subject of appeal 2. Approve compromises 3. Permit appeals of indigent litigants 4. Order execution of judgment pending appeal 5. Approve withdrawal of appeal o Why are there no residual powers in Rule 43? Because we are dealing with QJ-As, not regular courts. After giving due course, what may the CA require? o 1. Set case for oral argument o 2. Or require parties to submit memoranda within 15 days When is the case deemed submitted for decision? o Upon filing last memorandum or pleading o

Petition for Review on Certiorari (Rule 45) The only way to go up to the SC is through Petition for Review on Certiorari. o EXCEPTION: what if in a criminal case, the judgment of the SB, RTC, or CA is life imprisonment or reclusion perpetua? Go to the SC, but NOT by appeal by certiorari but by notice of appeal. o There are two situations where the SC can entertain questions of facts, apart from life/RP decisions. What are these? Writ of amparo (2007) Writ of habeas data (2008) (Any aggrieved party in a lower court decision re: WOA or WOHD may go straight to the SC, even if there are questions of fact.) What does Rule 45 cover? o Only appeals involving pure questions of law

Because the SC does not try facts, nor calibrate evidence Question of law: If the doubt or the difference pertains to what law applies to a given set of facts. o Question of fact: If the doubt pertains to the truth or falsity of an alleged fact o What if the issue raised in appeal is whether the contract between parties is a contract of sale or contract of equitable mortgage what is the nature of the question? Question of fact and law. What are the exceptions to the rule that the SC cannot review findings of fact of the lower court? o 1. Conclusion based on speculation, surmises, conjectures o 2. Inference is manifestly absurd, mistaken, impossible o 3. Grave abuse in apprehension of facts o 4. Decision based on misapprehension of facts o 5. Contradicting findings of fact o 6. Lower court went beyond issues raised and against what was stipulated by the parties Whose decisions can you appeal to the SC under Rule 45? o 1. CA EITHER original or appellate (from RTC) jurisdiction, as long as questions are purely of law Examples of original J: certiorari, prohibition, etc. o 2. CTA Under RA 9282, it must be a decision of the CTA en banc o 3. RTC ONLY those decided under its original jurisdiction. Because for decisions under its appellate jurisdiction, you have to go to the CA. (Rule 42), EVEN IF it is only pure questions of law. o 4. Sandiganbayan It goes automatically to the SC, because it is a coequal court with the CA. So the CA cannot review its decisions Take note of this amendment: AM 07-7-12-SC:

o o

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The petitioner can now apply for provisional remedies (like preliminary injunction, TRO) along with the petition for review by certiorari o May seek these same remedies through verified motion in the same action or proceeding anytime during its pendency o N.B. can include attachment, but this would be rare in the SC level. Support pendente lite is fairly common. Replevin is also fairly common. Petition for Review on certiorari what is the period? o 15 days. N.B. count from receipt of final order or judgment, or denial of the MR (auto fresh period) o Can there be extension? ONLY ONE extension for 30 days, for good reason o I asked only for an initial extension of 15 days. But I realized I needed more time. Can I ask for the last 15? NOPE. You only get one extension. o What are the requirements for motion for extension? 1. Pay docket and filing fees. N.B. The docket and filing fees must be paid at the time you ask for the extension; and NOT during the extended period. 2. There must be a justifiable reason. 3. Serve a copy of the motion for extension of time to the adverse party You raise a question of law to the SC. Is the review on certiorari a matter of right? o No. It is still subject to judicial discretion. So what questions of law do you need to raise to raise the likelihood that your appeal will be given due course? o It must not just be a question of law; it must be a substantial question of law. o What are the grounds to not give due course? 1) patently without merit 2) filed manifestly for delay 3) too unsubstantial to require further consideration N.B. Same as in the CA What are the contents of the petition? o 1. Full name of the parties, without impleading the lower court

2. Material dates showing timeliness 3. Concise statement of matters involved 4. Duplicate or CTC of judgment or final order or resolution appealed from o 5. Sworn certification against forum shopping This is an odd rule, since usually it is only required for initiatory pleadings COMPARE with Rule 65. o Who is the private respondent in a petition for certiorari (Rule 65)? The other party, who benefited from the adverse decision. o Who is the public respondent in Rule 65? The judge or public officer. Not required to answer the petition. o What about Rule 45? The lower court is NOT impleaded. The case title also doesnt change. So instead of Tuazon v. CA, it is still Tuazon v. Pua Why is there a need to append to the appeal material portions of the record? o Because the matter of elevating the records comes at a later time, from the CA clerk to the SC. So at the time of the filing of petition, you need to pinpoint the errors ahead of time. What are the factors that must be considered whether the petition should be given due course? o N.B. These are not controlling over the courts ultimate discretion o 1. The question of substance has not yet been passed upon by the SC [novel issue]; or decided not according to law [power of correction] o 2. Departed from usual accepted course of judicial proceedings, or sanctioned such an act by a lower court [power of supervision] E.g. In a lower court hearing, the judge arbitrarily disallowed a party from presenting evidence. This is an example of #2. How do you differentiate it from GADALEJ under Rule 65?

o o o

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Its difficult to do so, because the wording of the second ground has all the trimmings of Rule 65 Petition on Certiorari. The CA and SC have concurrent jurisdiction over original petitions for certiorari, mandamus, prohibition, etc. What negative considerations must you have in deciding where to file? o For CA know that this is not final. There is still possibility of petition for review by certiorari to SC. o For SC Sol-Gen can launch the issue of judicial hierarchy There are possible sanctions in case of non-filing or unauthorized filing, or non-compliance with conditions, when the SC asks for comment. Sec 8 due course after exchange of pleadings o It is a good sign and there is a receipt of resolution that the SC has given due course to the petition

Rules 44-56 CA How is jurisdiction acquired over persons for original cases filed in CA? o Service of order/resolution or voluntary submission to the courts jurisdiction o What does service of order or resolution mean? Akin to Rule 13 service of judgment o What if there was an effort to serve and it was not received? Is the court deemed to have acquired jurisdiction? No. There must be proper service of the resolution or order. Not like summons, but the same as Rule 13. Can the CA conduct a hearing? o For original cases, yes. This is why the CA requires hearings or arguments for certiorari, annulment of judgment, mandamus, prohibition, quo warranto. o N.B. Annulment of judgment is an original action seeking annulment of judgment of an RTC decision. Can you seek an annulment of judgment of an MTC decision? Yes. You file annulment in the RTC. Can you seek an annulment of judgment of a CA decision?

No. Fall back to the usual rule that you can only go up to the SC through Rule 45. o Can the justices hear the case? Yes. Alternatively, it can ask the RTC to receive evidence. Preliminary conference is the equivalent of pre-trial in the CA. Whether it is an original or appealed case, the CA can set it for preliminary conference. o What is the effect if the appellant is absent here? The appeal will be dismissed. This is provided in Rule 50. This is almost the same rule as absence of the plaintiff in a regular pre-trial. Rule 50 enumerates grounds for dismissal of appeals: o [Failure to properly appeal] o 1. Order or judgment is not appealable o 2. Failure to file notice of or record of appeal within proper period o 3. Failure of appellant to pay docket and lawful fees o [Record of appeal-related] o 1. Failure of record on appeal to show on its face that the appeal was taken within the proper period o 2. Unauthorized alterations, omissions, additions to the approved record on appeal o 3. Failure to make necessary corrections or completion of record, according to order by court o [Brief-related] o 1. Failure to serve proper number of copies of brief or memorandum When is a brief filed, and when is a memorandum filed? If you lose in an SCA in the lower court, you file a memorandum on appeal. Otherwise, you file a brief. o 2. Absence of specific assignment of errors in appellants brief; OR absence of page references to the record o [Failure to comply] o 1. Failure of appellant to appear in preliminary conference; o 2. Failure to comply with orders, circulars, directives of court without justifiable cause

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If any one of these circumstances appear, will the dismissal be mandatory? o No. It may be dismissed. There is court discretion. o Except: if order of judgment cannot be appealed If your appeal in disallowed, what is the remedy? o Petition for certiorari, or petition for mandamus Two errors noted by Sec. 2 and the appeal SHALL be dismissed: o 1. Pure questions of law sent to CA, instead of SC o 2. Notice of appeal instead of petition for review from RTC to CA When is withdrawing appeal a matter of right? o Before filing of appellees brief matter of right o After: discretion of court o Motion for withdrawal. What is the legal effect of withdrawal? o Lower court decision becomes final and executory. Compromise agreement when can it be done? o Anytime. Even when the judgment has become final and executory. Can the parties stipulate on the facts? o Yes, if it is an original action, or there is a grant of new trial on the ground for newly discovered evidence o (Note: newly discovered evidence is the only ground for the CA; FAME is not included) Oral arguments: what do I need to know? o 1. Only original cases are argued in court; not appealed cases But if the CA feels that there is a need for the parties to ventilate their arguments through oral discussion, then it can do it in its discretion. o 2. Motions are NOT heard in the CA While for trial courts, motions will be heard, except those that will not prejudice the rights of the other party. BUT in the Court of Appeals, motions in the CA need not be heard (same with the SC) o 3. Comply with minimum requirements of Rule 44 and 50. What if you dont have an assignment of errors?

Your appeal will be dismissed. What if you dont comply with court circulars? Dismissed. Rule 51 provision on judgment. o For trial courts, it is Rule 36. Can you file an MR in the appellate court? o Yes. Rule 52. o Same period (15 days) o Same three grounds except that the period to resolve in the CA (90 days) is longer than the TC (30 days) Can you file a MNT in the CA? o Yes. o In the TC, grounds are FAME and newly discovered evidence o In the CA, the only ground is newly discovered evidence o Periods? TC reglementary period within receipt of adverse decision CA from the time appeal is perfected and as long as the CA has jurisdiction

Annulment of judgment in the CA When does annulment of judgment vest as a remedy? o For final judgments of the RTC where ordinary remedies of MNT, appeal, petition for relief, or other remedies are not available o What if its a decision of the MTC? File with the RTC and follow these same rules, and treat it as an ordinary civil action What are the grounds? o 1. Extrinsic fraud But not if it could have been availed of in an MNT or petition for relief o 2. Lack of jurisdiction When is the period for filing? o If based on extrinsic fraud, within 4 years from discovery o If based on lack of jurisdiction, before barred by laches or estoppel Must it be verified?

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o Yes What else is required? o 1. Attach CTC of the judgment sought to be annulled o 2. CNFS What is the court action available? o Either dismiss it or issue summons to respondent What is the effect of a favorable judgment on the action? o The judgment becomes null and void, without prejudice to refilling o Or if the ground is extrinsic fraud, the court can order a trial de novo, as if an MNT was granted o The court can grant damages

Rule 56 Supreme Court Remember Sec. 1 and 3. Memorize the cases that will be originally filed in the SC. What are the cases that can be originally filed in the SC? o 1. Certiorari, prohibition, mandamus o 2. Quo warranto o 3. Disciplinary actions against members of the Bar/bench But if you file a case against a member of the Bench, it will be referred to the Court Administrator. If against a member of the Bar, it will be referred to the IBP. o 4. Against ambassadors, consuls, other public ministers, etc. o 5. Found in the Constitution: constitutionality of law, treaty, ordinance, tax imposition, EO, etc. What do you need to follow for original cases? o Rule 46 original cases o PLUS: Rule 48 (preliminary conference), Rule 49 (oral argument), Rule 51 (judgment), Rule 52 (MR) o Is there a MNT? No. For appealed cases to the Supreme court, what is the mode? o Rule 45 the only way to go up to the Supreme Court o PLUS:

Rule 48 (preliminary conference), Rule 51 (judgment), Rule 52 (MR) o Is there oral argument? No. Grounds for dismissal of appeals in the Supreme Court? o [Failure to properly appeal] o 1. Failure to appeal within proper period Ex. 15 days in Rule 45 o 2. Failure to pay docket and lawful fees or make deposit for costs You have to pay directly to the SC because you are appealing directly to the SC The usual rule that you pay the docket and lawful fees in the lower court, and it will merely transmit to the higher court does not apply here o 3. Error in the choice or mode of appeal o 4. Fact that case is not appealable to SC Always think of rule 45, general rule Note: Rule 65 is not an appeal, but an original action There is no other. Ex. Notice of appeal is improper, except one situation: Reclusion Perpetua or Life Imprisonment (to be discussed later) o [Patently without merit] o 1. Lack of merit in the petition An appeal patently without merit o [Failure to comply] o 1. Failure to comply with requirements regarding proof of service and contents of and the documents which should accompany the petition Not just to adverse party, but also the lower court who rendered the judgment o 2. Failure to comply with circular, directive, or order of SC without just cause Ex. Indicating telephone number, e-mail address stuff in addition to PTR, etc. N.B. For all grounds, take note it says MAY BE dismissed, so it is not automatic.

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What if there is appeal by Rule 45 to the SC from the RTC submitting issues of fact? o May be referred to CA for decisions or appropriate action. Determination of SC whether or not there are issues of fact is final o What is the situation contemplated here? On its face, there are only issues of law. But after a while, the SC realized there are mixed questions of fact and law. o Options of SC: 1) dismiss the case improper mode Consequence: appellant had lost his time to properly appeal to the CA (15 days only) 2) remand to the CA Because otherwise, there would be no more time for you to go to the CA What is the procedure if opinion of the SC is equally divided (stalemate situation)? o This applies in an en banc case. This rule does not apply to a division in the SC. o 1. Deliberate again. o 2. If still no majority: Original action dismissed Appealed cases decision affirmed Incidental matters petition of motion denied

4.

5.

6.

7. 8.

i. Nature of action ii. Summary of proceedings iii. Appealed rulings and orders, and nature of judgment b. Easiest way to do it: chronological sequence c. Dont bother mentioning the irrelevant motions like motion to extend, unless there is a timing issue, etc. Statement of Facts a. Clear and concise statement in narrative form of the facts b. E.g. The following facts are not disputed by both parties: Statement of issue a. Just a simple statement of what the court needs to resolve: e.g. W/N the marriage between plaintiff and defendant should be declared void on the ground of psychological incapacity. Arguments a. Must be with reference to the record b. And cite authorities Relief Copy of the final order or judgment being appealed a. In cases not brought up through record on appeal, appellants brief must contain this as an appendix,

[Appellees brief] 1. 2. 3. Subject index Statement of facts a. Or counter-statement Arguments

Contents of briefs [Appellants brief]

PROVISIONAL REMEDIES 1. Subject index a. Like a table of contents b. For posteritys sake, put this even if its just short Assignment of errors a. How the lower court erred b. Key word: specific errors. Not allowed to just make general statements Statement of the Case a. Clear and concise statement of: Rule 57 attachment When should jurisdiction over the defendant vest in attachment? (Manguila, citing Davao Light and Power) o Distinguish between issuance and implementation of the writ of attachment to determine when jurisdiction is needed over the defendant.

2.

3.

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Remember you could file an attachment will the initiatory pleading and apply for it ex parte. You can also apply for it upon motion. o To answer the question: there are three stages for attachment 1. Court issues order granting application 2. Writ of attachment issues pursuant to the order 3. Implementation of the writ FOR THE FIRST TWO STAGES, jurisdiction over the defendant is not yet required because it is an ex parte application. However, when you are implementing the writ, you need jurisdiction over the defendant. o Thus, how can the writ be implemented? You have to get jurisdiction over the defendant first. o Summons should be served prior to, or contemporaneous with the order (for implementation). Contemporaneous is better. o Summons belatedly served does not cure fatal defect in the enforcement of the writ. Either personal or substituted service. o What are the exceptions to prior or contemporaneous service of summons? 1. Summons cannot be served personally or by substituted service, despite diligent efforts 2. Defendant is a resident of the RP temporarily absent therefrom 3. Defendant is a nonresident of the RP 4. Action is in rem or quasi in rem Grounds for attachment? MEMORIZE o 1. Any claim for money or damages except moral/exemplary, if the claim arises from an obligation (law, contract, quasicontract, delict, quasi-delict) AND defendant is about to depart with intent to defraud What if claim is recovery for sum of money only? No. You could only apply for attachment if the defendant is about to depart with intent to defraud. o 2. Embezzlement/abuse of trust by one with a fiduciary relationship For all intents and purposes, this is estafa

3. Action to recover property and there is willful fraudulent concealment of the property o 4. Action against a person who removes/conceals property Unlike (3), this is directed against a person o 5. Fraud in contracting the obligation or fraud in the performance thereof most asked ground First: If not for the fraud, the other party would not have entered into the transaction Second: In the manner of the performance, it was fraudulent o 6. Defendant is a non-resident Fraud not required here, because he can leave at any time What are the contents of affidavit for attachment? o 1. Cause of action o 2. Statement that any of the grounds applies o 3. There is no sufficient security o 4. Amount due to applicant or value of the property he seeks to recover is as much as the sum for which the order is granted, above all legal counterclaims How do you discharge an attachment? o 1. Most common: post a counter-bond When do you post a counter-bond? Can be posted after enforcement of the writ. You cannot anticipate its enforcement. o 2. Improper, irregular, or excessive attachment What is improper? Grounds are not present in the case What is irregular? Wrong process. When can this be raised? ANYTIME, even before enforcement. o What if the writ of attachment was issued for a ground that it is also the cause of action of the plaintiff? The only way to dissolve it is to post a counter bond. Can you recover damages? o Yes, Section 20 if there is improper, irregular, or excessive attachment.

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N.B. Section 20 applies to all provisional remedies except support pendent lite. o Where can you apply for it? In the trial court; during or after trial. You can apply for it within reglementary period, or when appeal has been perfected. AS LONG AS it is pending, and not yet final and executory. o If you post a counter bond, does this waive any further claim for damages arising from wrongful attachment? No. What kind of damages can be recovered? o Yu v. Ngo: Evidence required for wrongful attachment. When there is wrongful attachment, defendant may recover actual damages, without need of proof of bad faith. When there is malicious attachment, defendant may recover actual, moral, and exemplary damages. o What is the scope of the award of actual damages from attachment? 1. With best evidence obtainable, fact of loss or injury 2. Amount thereof o Can actual damages cover unrealized profits? Yes. But the amount must be supported by independent evidence of mean income of the business undertaken. o How do you prove moral/exemplary damages? Prove that the wrongful attachment was with malice or bad faith. How about attorneys fees? o Generally, attorneys fees cannot be awarded when moral or exemplary damages are not granted. o Exception: when a party incurs expenses to lift wrongfully issued writ of attachment. What is the procedure for terceria (third party claim)? o The applicant has posted a bond when he applied for a writ of attachment (to cover whatever damages defendant will suffer due to attachment) o By reason of a third party claim (with no bond needed from the third party claimant just an affidavit of his title), the process will be suspended.

Now it is the burden of the applicant to post another bond in the value of the property, to cover the third partys damages. o How long can a claim for damages for taking/keeping of property be enforced against the bond? Within 120 days from date of filing of the bond What is the difference in the third party claim in execution of judgment (Rule 39) and Preliminary Attachment (57) or other provisional remedies? o The right of the third party claimant in attachment could be vindicated in the same or in a separate action. In execution, it could only be done in a separate action. o Why? Because in execution, the judgment is already final. In Rural Bank, a motion was filed to release property from attachment, giving affidavit of title to the sheriff. The court said that the filing of the motion can be deemed the same as a third party claim (because 3P claim must be filed with sheriff). It can also be treated as a form of intervention. What takes precedence, levy on attachment or prior unregistered sale? o Levy on attachment duly registered takes preference over a prior unregistered sale. The preference created by attachment is not defeated by the subsequent registration (to the attachment) of a prior sale, because attachment is a proceeding in rem. What is the procedure when there is an alleged irregular and improper issuance of attachment? o When the attachment is challenged for being illegally or improperly issued, there must be a hearing. The hearing embraces the right to present evidence, and also the establishment of rights of other parties. o Mere filing of opposition is not equivalent to a hearing. Absence of a hearing does not discharge attachment. o N.B. The discharge of an attachment, whether through counterbond or irregular, improper, or excessive can only be done through hearing. o Security case: Two ways to secure discharge of attachment. 1) Party whose property or his representative has been attached can post a security. 2) Said party can show that the

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attachment has been improperly or irregularly issued. Mere posting of counter bond does not discharge the attachment. There should be a specific resolution for the discharge. What if the court renders a judgment and there is a previous attachment, duly registered, what will the subject of execution? o 1. If there is money duly garnished or obtained through sale of perishable goods, the money will be applied. What does this refer to? If the property attached is perishable or the sale of the property will best subserve the parties interests, as determined by the court, the property can be sold in public auction The proceeds will be deposited in court and take the place of the property o 2. If not sufficient, sell real or personal property that has been attached. These have to be sold on public sale. Procedure is consistent with Rule 39. o 3. What if the properties attached are not sufficient to satisfy the judgment? Court proceeds with ordinary execution to cover the balance. What if the defendant filed a counterbond? o Recovery can be sought against it; it takes the place of the property sought to be attached, but released by the CB

Rule 58 - Injunction N.B. Rule 58 has been amended on Dec 2007. It was amended alongside Rules 41 and 65. What was affected by the amendment? o Rule 58, Sec. 5. [Discussed later on] Bacolod City v. Labayo: Can there be a principal action for injunction? o Yes. There can be a principal action for injunction. There is a distinction made in this case between principal action and preliminary injunction: o Principal action seeks a judgment for a final injunction which is separate and distinct from a preliminary injunction o Preliminary injunction object is just to preserve status quo

What are the requisites for a PI? o 1. A clear and unmistakable right o 2. The right has been violated, and invasion has been material and substantial Borromeo: Where the parties stipulated in their credit agreement, PN, contract, etc., that the mortgagee has the right to foreclose in case of default, this defeats any future claim for the issuance of a PI. o 3. There is an urgent and permanent necessity for the writ to prevent serious damage How is a WPI granted? o 1. Verified application showing facts entitling applicant to the relief demanded o 2. Bond (to cover for damages to other party in case the WPI/TRO is wrongfully issued) o 3. If the application for WPI or TRO is alongside a complaint or initiatory pleading,: A. Notice given to party to be enjoined Raffle case only after such notice, and in the presence of that person B. Notice preceded or contemporaneously accompanied by summons What are the exceptions to the requirement that summons are required to be served prior or contemporaneously? o 1. Cannot be served personally or through substituted service despite diligent efforts o 2. Defendant is a resident temporarily absent from the RP o 3. Defendant is a nonresident of the RP o 4. Action is in rem or quasi in rem C. Notice with copy of the initiatory pleading + bond o 4. Hold a summary hearing conducted within 24 hours after the sheriffs return of service and the records are received by the branch selected to hear it Types of PI?

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1. Preliminary injunction to prohibit or stop (status quo ante) 2. Preliminary mandatory injunction an injunction which requires you to do something or perform something that you do not ordinarily want to perform, in order to maintain the status quo Estares: A writ of PI based only on initial and incomplete evidence is this allowed? What kind of evidence is required? o You dont need to present your entire case. Only a sampling of evidence is needed, to give the court an idea to justify why you need to obtain the PI. Can a judge issue a PI without a notice and hearing? o No. Its an absolute no. (Dela Paz) Can the court issue a TRO without notice and hearing? o Today, yes. (This is the amendment) o 1. 20 day TRO ex parte if great and irreparable injury o 2. 72-hour TRO ex parte if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury o N.B. Ex parte means no notice and hearing What are the differences between the 20 day and the 72 hour TROs? o 1. Only an executive judge of a multi-sala court, or the presiding judge of a single-sala court, there can issue a 72 hour TRO o 2. Count the 20 days from service to the party or person to be enjoined; count the 72 hours from issuance of the TRO N.B. this is because the 72 hour TRO can precede summons, which must still be complied with and served after o 3. What is heard/determined within the period Within the 20 day period, the court must order the enjoined person or party to show cause at a specified time and place which the PI should not be granted (and the court decides); Can a 20 day TRO be extended? o No, it automatically expires w/ or w/o a period. o Unless you obtain a preliminary injunction

o o

Within the 72 hour period, the court determines whether extension to a 20 day TRO must be granted in a summary hearing How long is a TRO that was issued by a higher court? o CA: 60 days from service on the party enjoined o SC: indefinite Can a preliminary injunction be issued without notice and hearing?? o No. NEVER. There must always be notice and hearing. o The hearing is always summary in nature whether TRO or preliminary injunction. Can an injunction have an effect if enforced outside the judicial district? (ex. enforced in Makati and Mandaluyong, and the judge is stationed in Marawi) o No. A writ can only be issued in the judicial region. What is the purpose of the bond? o To protect the person against whom the writ of injunction has been issued. Garcia: Posting of a bond is a condition sine qua non to issue a writ of PI. o The posting of a bond in connection with PI does not operate to relieve the party obtaining the injunction from paying damages the bond only gives additional protection in favor of the defendant o So Rule 57, Sec 20 also applies here. Read above, on the rule re: damages. Aquino: Dissolution of the injunction, even if it was obtained in good faith, amounts to a determination that it was wrongfully obtained. A right of action against the bond accrues. A court issued a writ of PI. What is the duty of the court in relation to the main case? o The main case has to be decided within 6 months or else the judge can be disciplined by the court. This is a new provision. SC Circular (2007): On issuance of PI on extrajudicial and judicial foreclosure cases. o 1. Today it is not enough to say that you have paid the amount. Mere allegation of payment without showing actual payment is not basis for issuance of PI.

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2. Mere claim/allegation that the interest is unconscionable or excessive does not justify issuance of the PI unless the legal interest is paid. What is a Status quo order? o It is not a preliminary injunction. Minimum requirements of TRO/injunction do not apply to status quo orders. o It can be applied in TC or appellate court. A status quo order can be issued without a bond, or without a fixed term. o BUT in the SC Circular (2007): requirements for TRO must apply to status quo orders if issued for judicial or extrajudicial foreclosure of mortgage. Can the court require you to post a bond for a TRO? o Yes. If you file a petition for certiorari against the PI, does it suspend the main case? o No, it does not. This is an amendment introduced in 2007. o Can you extend the period by which you can file a petition for certiorari (60 days)? No more. Before the 2007 amendment, you can ask for a 15 day extension. This was removed already. How can you deny a writ of PI or TRO? o Prove insufficiency of the application for injunction. o This is just a ground to deny but not to dissolve; so once the WPI or TRO is granted, insufficiency is not a ground anymore. How can you dissolve a writ of PI or TRO? o 1. File affidavits showing there is no reason for the PI o 2. File a counterbond + an affidavit showing that he will suffer more damage than applicant will Is a mere counterbond enough? No Is the mere statement enough? No o N.B. Note the difference with preliminary attachment, where a counterbond alone can dissolve the writ. In preliminary injunction, it has to be statement + counterbond. What is the prohibition under RA 8975? o There can be no PI or TRO against acquisitions, bidding or awarding of contracts, commencement or execution of such,

o o

termination or rescission of the same, or other similar lawful activities in relation to government projects. Any TRO or PI issued is null and void. What is the exception? Except when issued by the SC.

Rule 59 Receivership The only provisional remedy that can be applied for post-judgment and even if it is already final and executory. Grounds: o 1. There is interest in property which is in danger of being lost o 2. In a foreclosure action, and the property is in danger of being wasted/dissipated, and that its value will not be sufficient to cover the value of the debt Or there is a stipulation for such in the mortgage contract o 3. Preserve property during pendency of appeal, to dispose of it according to judgment, to aid execution if execution is returned unsatisfied, or to carry judgment into effect o 4. Other reasons the court finds convenient and feasible What are the requirements? o 1. The applicant files a bond o 2. The receiver must also file a bond and take oath o N.B. TWO bonds (applicant and receiver himself) What are the ways to dissolve the bond? o 1. Show no cause o 2. Post a counter bond What are the general powers of a receiver that need no court approval? o 1. Take and keep possession of property in controversy Receive rents o 2. Collect debts due on the property, estate, person, fund, etc. Compound for and compromise these Make transfers Pay outstanding debts o 3. Divide money and other property remaining among persons legally entitled o 4. Perform acts authorized by the court

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What powers of the receiver need court approval? o 1. Bring and defend actions in his name N.B. need court approval for either o 2. Invest the funds must have written consent of the parties to the action When is receivership terminated? o When there is no more need for a receiver. 1. Motu propio determined by the court or 2. Upon motion of either party o What happens? After due notice to all interested parties and hearing, settle accounts of receiver, and direct delivery of property. The receiver receives reasonable compensation.

Rule 60 Replevin What are the contents of the affidavit? o Memorize this for the bar o 1. The applicant is the owner of the thing o 2. Property is wrongfully detained o 3. Property is not lawfully taken o 4. The fair market value of the property Can property held as evidence in criminal case be subject to a writ of replevin? o Superlines: NO. In the affidavit of the affiant, the property is not subject of custodia legis, execution, or attachment. The deprivation, to be validly subject to replevin, must be illegal or unlawful. o Property can be said to be in custodia legis, not only when it is in official custody, but if it pursuant to a legal order in a case Danao: Can you subject to replevin a motor vehicle in custody of another court? o No. It is in custodia legis. Can goods under custody of an agency of the government (here, ex. Bureau of Forestry) be subject to a writ of replevin? o No. It is under lawful process. Can one quash a writ of replevin? o Of course, it may be quashed or dissolved

How do you dissolve? 1. If you want to regain immediately custody or possession, you just simply post a counter-bond N.B. Take note. No need to oppose the grounds, etc. Just post a counterbond. When can he post this counterbond? o Anytime before the property is delivered to applicant What is the time period between the sheriffs taking of the property and its delivery to the applicant? o 5 days. So this is the time frame to object. 2. Attack the sufficiency of the bond Here, you cannot effect an immediate release What is the value of the bond? o This is the only provisional remedy where the bond/counterbond is double the value of the property. o Pinggol: A replevin bond was deemed invalid because the officer who signed the bond is without authority to do so from his company. When can replevin be applied for? o You can only apply for this at any time before an answer. o For the other provisional remedies, you can apply anytime while the action is pending (or for receivership, even after) What is your remedy after an answer is filed? o You file an attachment, but the effects are different. o What are the differences? 1. In replevin, the property subject of the action is taken. In attachment, properties, whether real or personal are attached to secure the judgment 2. In replevin, when the writ is served, the sheriff takes possession, and delivers it to the applicant (unless a counterbond is filed within 5 days). In attachment, personal property is taken by the sheriff and delivered to the court; for real property, the sheriff annotates at the dorsal portion of the title.

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Note that the main action is recovery of possession of property. The issuance of a writ of replevin is just a provisional remedy. Once the sheriff takes the property what is his duty? o He delivers it to the applicant for the writ of replevin. o How long does the adverse party have to object? Within 5 days of taking, can object to sufficiency of the bond Can there be a principal action for replevin as a provisional remedy? o No, just like everything else, it is a provisional remedy. o BUT because of the ADR rules, you can file any provisional remedy as a main action in aid of an arbitration clause. (!!!) In attachment and replevin, there are rules for third party claims. What are these? o 1. Rule 39 Sec 16 o 2. Rule 57 Sec 14 o 3. Replevin o Note that unlike execution, in attachment and replevin, a third party claimant can vindicate his right in the same or a separate action. In Rule 39, a third party claimant can only vindicate his right in a separate action, because judgment is final and executory. o What is the rule on intervention (Rule 19)? You can intervene anytime before judgment. But this only applies to trial courts. o What about appellate courts? You can still intervene, but subject to the appellate courts sound discretion.

Rule 61 Support pendente lite When can you apply for this? o Anytime before final judgment What is the procedure? o 1. Submit verified application for SPL stating grounds, attaching affidavits, depositions, documents o 2. Adverse party files verified comment within 5 days o 3. Set for hearing not more than 3 days thereafter o N.B. only provisional remedy that cannot have ex parte hearing

This is the only provisional remedy that does not require a bond. The four others require a bond. The person applying for support obviously needs money. o N.B. For all these other provisional remedies, just follow Rule 57 Rule 23. The general rule is you can only recover damages from a bond while the action is pending. o So what is the rule if you are wrongfully compelled to give support? You dont recover damages. You ask for reimbursement. What if there is refusal to comply with court order to give support? o The court can order execution. o There are only two instances where there can be writ of execution even when there is no final judgment: 1. Support pendente lite 2. Indigent (which the court finds that you are not an indigent and requires you to give filing fees) Who can apply for support in criminal cases where the accused is charged with a crime where a child is borne by the offended party? o 1. Offended party o 2. Parents o 3. Grandparents o 4. Guardian o 5. State What if a person believed that he is the father and he gave support? Then, it turns out he is not the father. o If the action is still pending, you can apply for reimbursement in the same action. o If there is a judgment already, you can apply for it in a separate court proceeding. Can you dissolve support pendente lite? o When there is no reason to give support pendente lite.

SPECIAL CIVIL ACTIONS Rule 62 Interpleader When is interpleader proper (Requisites)?

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1. Conflicting claims on the same subject matter 2. Made against a person who: Claims no interest over it Or an interest which is not disputed by the claimants What is the procedure? o 1. Action for interpleader brought to court o 2. Court issues order requiring parties to interplead May ask for subject matter to be delivered/paid to court o 3. Issue summons to parties, with complaint and order o 4. Parties can file: MTD (if denied, at least 5 days to file answer) Answer Can there be a counterclaim in an interpleader case? o Yes. Stuff to remember: o In the interpleader case, the one filing the case was not violated. There was no breach. o The person filing the action can either have an interest which is not in conflict with the claiming parties, or has no interest at all. Are there filing fees for an interpleader action? o Yes. o However, the applicant, not being violated nor is he a Real Party in Interest is entitled to a lien on the judgment award What is the difference with intervention? o In intervention, there is already a pending case. Here, you initiate the action.

o o

Rule 63 Declaratory relief and Similar Remedies What are the requisites of declaratory relief? o 1. Subject matter is a deed, will, contract, or other written instrument, statute, EO, or regulation o 2. The terms of the documents are doubtful and require judicial construction o 3. There must have been no breach of the documents in question Malana: Reiterates that declaratory relief presupposes no actual breach. An action for

declaratory relief must be dismissed if there is a pending action for unlawful detainer. o 4. Actual justiciable controversy o 5. Ripe for judicial determination o 6. Adequate relief is not available Bottom line: purpose is for interpretation and determination of validity. Its not about constitutionality. o Also, there must be no breach What if there is breach? o There will be conversion to an ordinary civil action. This is the only such action that can be converted. Do you need to pay filing fees when it is converted? o Yes, you need. Which court has original jurisdiction? o RTC. o What if there is an allegation of unconstitutionality? The RTC has no exclusive jurisdiction; you can file it elsewhere like the SC. The RTC only has exclusive jurisdiction if it is a pure question of declaratory relief What are the other similar remedies covered by par. 2? o 1. Removal of cloud o 2. Quieting of title o 3. Reformation of instrument When can you reform? There must be mutual mistake. Can there be execution in a declaratory relief case? o Yes, nothing prevents the filing of a counterclaim in a declaratory relief, and there can be execution pursuant to this. Who intervenes when there is challenge against validity of statute, EO, or other government regulation? o Solicitor General o What about local government ordinances? LGU prosecutor or attorney Solicitor General as well, if there is challenge against constitutionality

Rule 64 Review of judgments and Final orders of COMELEC/COA What is the nature of this petition?

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This is actually a petition for certiorari. If you file under Rule 64, it will be named a Petition for Certiorari o This has a limited application; it only covers decisions by the COMELEC and COA. What is the difference in period for a Rule 64 petition as compared to Rule 65? o The period to file a petition for certiorari under Rule 64 is 30 days, non-extendable. o What if there was an MR/MNT and it was denied? If there is an MR or MNT and denied, you get the period remaining which will always be at least 5 days (partial fresh period) o N.B. this is unlike the 60 day period for Rule 65 o N.B. for Rule 65, you always get the full 60 days period even after denial of MR/MNT What must be the nature of the attachments? o As with Rule 43, all the attachments in Rule 64 are certified true copies, because you involve Quasi Judicial Agencies. Must it be verified? o Yes. Is a CNFS needed? o Yes. After filing the petition and serving a copy with the adverse party and the Commission, what is the next step? o 1. If SC finds the petition sufficient in form and substance, it orders respondents to file comment within 10 days from notice. N.B. Comment: 18 copies too, with CTC of record and supporting papers o 2. SC may dismiss the petition outright if: A. It is not sufficient in form or substance B. it was filed manifestly for delay C. Questions raised are too unsubstantial to warrant further proceedings Does the Rule 65 petition stay execution of judgment? o No, unless the SC directs otherwise When is the case deemed submitted for decision? o Upon submission of the comment by the respondent o Unless the SC requires submission of memoranda or requires oral argument

Rule 65 Petition for certiorari, mandamus, prohibition First rule of Rule 65: you do not talk about Rule 65. Second rule of Rule 65: you do not talk about Rule 65. Third rule of Rule 65: You have to fight on your first night. Real first rule of Rule 65: this is not an appeal Elements of certiorari? o 1. GADALEJ o 2. No plain, available, speedy ordinary remedy What is prohibition? Should there be GADALEJ? o Yes. The same is required GADALEJ. No plain, available, speedy ordinary remedy. o It is the same as certiorari. o In prohibition, you cannot prohibit an act that has already been performed. It is already moot. Certiorari whose decision can you question? o Judicial or QJA Prohibition whose decision can you question? o Judicial, QJA, or ministerial How does mandamus differ from prohibition? o Limited to ministerial functions. o Here, you are requiring him to perform. Can the OMB be compelled by mandamus to file an information? o No. It is not ministerial. If you entered into a contract with X to build a house for you, and X received the advance of the contract price, and X did not build the house, can you compel his performance by mandamus? o No; it is not a ministerial function. It is a contractual obligation specific performance is the proper remedy. How can an OMB judgment be reviewed? o Generally, under Rule 43. o However, if the decision of the OMB in a criminal case is tainted with GADALEJ, Rule 65 Certiorari can be filed with SC. Must a petition under Rule 65 (C, P, or M) be verified? o Yes. What must be included too? o 1. CNFS

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2. For certiorari or prohibition, the copies of order, resolution, or judgment (for certiorari) questioned, and all pertinent documents What is the period to file the petition? o 60 days from the notice of judgment, order, or resolution o What if an MR or MNT is denied? Count 60 days from denial of the motion (real fresh period rule) N.B. this is different from Rule 64 where only the remaining period not less than 5 days would remain Where do you file a Rule 65 petition? o A. For MTC, corporation, board, officer, or person: RTC It could be in the CA or SB, whether or not the same is in aid of the courts appellate jurisdiction o B. Act or omission of a QJA: CA only o C. Election cases involving act or omission of MTC or RTC: COMELEC, in aid of appellate jurisdiction [N.B. based on 2007 amendment] Who defends the questioned judgment, order, etc? o The private party interested in the judgment o The public party will be nominally made a party but shall not appear in or file an answer/comment to the petition or file a pleading What does the court do after filing of the petition? o If sufficient in form and substance, issue an order requiring respondent/s to comment on the petition within 10 days from receipt of copy o What is the rule if the petition is filed before the CA or SC? Before giving due course, it can require the respondents to file their comment to the petition and, if it wants to, a reply from the petitioner Can the respondent file a motion to dismiss instead? No. What happens after comment is filed? o 1. The court may hear the case or require submission of memoranda

2. Or it may dismiss the petition if it is found to be: A. Patently without merit B. prosecuted manifestly for delay C. Questions raised are too unsubstantial to require consideration Does Rule 65 suspend the principal case? o No, unless the court where the petition is filed issues a TRO or preliminary injunction o If there is no TRO or PI, the public respondent must proceed with the principal case within 10 days from the filing of the petition N.B. else, administratively liable What are the consequences of filing a petition patently without merit or manifestly for delay, or questions are too unsubstantial for consolidation? o 1. The court may award in favor of respondent treble costs solidarily against petition and counsel o 2. Counsel may be subjected to administrative sanctions o May the court motu propio impose disciplinary sanctions and measures on erring lawyers? Yes, based on res ipso loquitur

Quo Warranto Who commences an action for quo warranto? o Liban: Generally commenced by the government. o 1. President, directing the Sol-Gen o 2. Sol-Gen, in the name of the government, when he has good reason to believe o 3. Upon the relation of another person, telling the Sol-Gen to institute the action What is the special requirement if it is upon the relation of another person? There must be approval by the court. If not approved by the court, the Sol-Gen will not file. N.B. also, the Solicitor General will require the other person to file indemnity for expenses/costs of the action to the court

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N.B. the respondent will also be given prior notice and the chance to be heard prior to the court giving approval for the filing o 4. The person instituting quo warranto in his own behalf must show that he is entitled to the office in dispute. This is where the person aggrieved himself files What should he show? 1. His claim 2. And that he is entitled to the office When can you file it? o 1. Usurpation of public office, position, or franchise o 2. Public officer who does or suffers an act constituting ground to forfeit office o 3. Association acting as a corporation but not duly incorporated Quo warranto is also available if a government corporation has offended against its chapter. It is a prerogative writ, where the government can exercise its right to demand proof of what right a person has over office What is the venue? o 1. RTC where respondent resides o 2. CA o 3. SC o This is another example of concurrent jurisdiction o What is the special rule? If it is the Sol-Gen who institutes the action, it can be filed in the RTCs of the City of Manila What is the period to institute an action for quo warranto? o One year from happening of the event (usurpation) Can you recover damages from a quo warranto judgment? o One year from entry of judgment entitling petitioner to the position What are the rights of the person adjudged entitled to the public office? o A. After taking oath and executing any bond required by law, may demand books and papers in respondents custody What if the respondent refuses? Contempt of court o B. Action for damages against usurper

If there is a dispute between and among the Board of Directors of a private corporation, one group claiming that they have been usurped, is the proper remedy quo warranto? o No. This is an intra-corporate dispute to be filed in the regular courts (RTC) having original jurisdiction. Distinguish from Quo Warranto in election cases: o 1. Filed by any registered voter in the constituency o 2. On grounds of a) ineligibility or b) disloyalty to the RP (ex. Having a green card) o 3. Within 10 days from proclamation of results

Rule 67 Expropriation Who can expropriate? o National government o LGU o Instrumentality of government Veluso v. Panay: o LGUs by themselves have no inherent power of eminent domain. Thus, strictly speaking, the power delegated to the LGUs is inferior domain. o But an LGU can expropriate. o What are the requisites before an LGU can exercise eminent domain? 1. Public use, public purpose, public welfare 2. Ordinance by local legislative body authorizing local chief executive to exercise eminent domain 3. Just compensation 4. Valid and definite offer previously made to owner but not accepted What must be alleged in the expropriation complaint? o 1. Right and purpose of expropriation o 2. Description of the property sought to be expropriated o 3. Names of persons owning or claiming to own it, or possessing it, or having interest over it o N.B. it must be verified Can a complaint for expropriation be withdrawn? o It can be withdrawn for as long as there is no judgment yet

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Once there is an order for expropriation, it can no longer be withdrawn What if the defendant has no objection? o He files and serves a notice of appearance and manifestation only. Thereafter, he is entitled to notices. What if the defendant has objections? o He files and serves an answer within the time stated in the summons, stating his objections. o Can there be a counter-claim, cross-claim, or third party complaint? No. o Can there be amendments to the answer filed? Generally no, but in the interest of justice, the court may allow an extension of not more than 10 days. o N.B. Even if the defendant initially objected and filed an answer (not a manifestation/appearance), he is still entitled to just compensation. When does an order of expropriation issue? o If the objections and defenses are overruled, or when there is no defendant, the court issues an order of expropriation o May the order of expropriation be appealed? Yes, but it does not prevent the court from entering the second stage (just compensation) After order of expropriation, what is the second stage? o Determination of just compensation o The court appoints not more than 3 commissioners to ascertain the value of the property. Non-compliance with this step is a denial of due process When can the plaintiff enter the property and appropriate it for public use? o In general, after judgment and payment of just compensation as determined by the court o Or the plaintiff can continue its possession of the property if it made a prior deposit and entry N.B. see below When is there immediate entry allowed for expropriation under Rule 67? o 1. Filing of complaint + due notice to defendant and

2. Deposit with authorized government depositary an amount equivalent to the assessed value of the property When is there immediate entry allowed for expropriation under the LGC? o 1. Filing of complaint for expropriation sufficient in form and substance and o 2. Deposit of amount equivalent to 15% of FMV of the property to be expropriated, based on latest tax declaration When is there immediate entry allowed for expropriation under RA 8974 (acquisition of property for right of way or for government infrastructure projects)? o 1. Filing of complaint + immediate payment of 100% assessed value of the property and the improvements (same rule as Rule 67) o 2. If there is no zonal valuation AND the expropriation is of utmost importance: Filing of complaint + payment of proffered value of the property What is the general rule for valuation? o Rule 67, Sec 2 provides that for real property, it must be assessed value, in general. If it is personal property, assessed too Government entered property (took it) and caused demolition of improvements. But before there was order for expropriation, the government said huwag na lang. Can the government withdraw? o Yes. But it is liable for damages. What if there is a subsisting contract between government and the private person? o There can be no expropriation contrary to that contract. What is the nature of determination of just compensation? o It is a judicial function, which is why the judiciary still has control over the commissioners. In traversing a lot with transmission lines, is there expropriation or easement? o There is expropriation (NPC v. Manubay) What is the nature and limitation of public purpose? o Mactan Cebu Airport: When you say public purpose, it must be the purpose stated, and not another, even if public too

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The acquisition of government of property is limited to the public purpose stated, because it is not a simple purchase in fee simple, unlike in the normal purchase of property. How is just compensation ascertained? o 1. Court appoints 3 commissioners Copies of order served on the parties Objections to appointment of commissioners must be filed within 10 days of service Resolved within 30 days after all commissioners have received copies of the objections o 2. Commissioners take oath o 3. Commissioners receive evidence Consider consequential damages and consequential benefits N.B. But in no case should he be deprived of actual value of the property taken o 4. Commissioners issue report Can they issue partial reports? Yes What is the time period for the report? 60 days from notice of appointment What is the period to file objections? 10 days from receipt of the report by the parties o 5. Court may accept, reject, or recommit the report N.B. can be in part or wholly When does the court do this? After expiration of 10 day period or after submission of objections by all parties What else can the court do? Secure to the plaintiff the property essential to the right of expropriation and to the defendant, just compensation o 6. Plaintiff may take over property after payment of costs What if the defendant refuses to accept the payment? Tender in court Does appeal stay entry by the plaintiff? o No.

Rule 68 Foreclosure Two kinds of foreclosure? o Judicial foreclosure (Rule 68) o Extrajudicial (Act 3135) What is the difference? o Rule 68 you have to file a case, just like any other action; you have to pay filing fees o Act 3135 you file a verified petition before the office of the clerk of court, who is the ex-officio sheriff When is the EJF scheduled? After paying of incidental fees and fees for publication What is diff between JF and execution? o A. When there is award of JF, the mortgagor continues to be in possession of the property. When does the purchaser at auction sale or the last redemptioner get possession of the property? Finality of the order of confirmation (or expiration of redemption period if allowed by law) o B. In execution, the obligor continues to be in possession of the property. o C. What about Banking Law? In Banking Law, the possession is different. If the lender is a bank and the borrower/mortgagor is an individual the one in possession after foreclosure sale is the purchaser or the bank, if it purchased. o D. What about Act 3135? After foreclosure, the mortgagor still possesses. Unless the lender is a banking institution follow the Banking law. How is the disposition of the proceeds of sale? o 1. Deduct costs of sale o 2. Pay to the person foreclosing the mortgage o 3. Balance or residue to junior encumbrancers in order of priority o 4. If no junior encumbrancers, balance to mortgagor or his agent

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What if after execution, there is still a deficiency? Can execute against the mortgagor What is the redemption period in JF? o Equity of redemption: period 90-120 days. This is just the general rule. If there is a law giving a longer period of redemption for the mortgagor, then that prevails. o In execution in Rule 39? Redemption is one year. o In Act 3135? Redemption is one year. o Bank as lender and mortgagor/borrower is a corporation? 90 days or registration of certificate of sale, whichever comes first. Metrobank v. Tan: o Filing of a civil case involving annulment and cancellation of an EJF sale. o The general rule in redemption not enough to manifest intent to redeem. It must be accompanied by actual and simultaneous tender of payment. (This also applies even to redemption in execution.) What constitutes payment for purposes of redemption? o 1. The price which the purchaser paid for the property o 2. Interest of 1% per month on the purchase price o 3. Amount of any assessment or taxes which the purchaser may have paid on the property o 4. Interest of 1% per month on such assessment Distinguish a legal redemption from conventional redemption? o Legal redemption is one that is within the period provided for by law. o Conventional redemption beyond the redemption period, and you still want to redeem, and you would like to agree on a different price Governed by contractual law. So the redeemer cannot insist on the calculation above Metrobank case: o When the complaint to enforce a repurchase, if filed within the redemption period is treated as an offer to redeem and will have the effect of preserving the right of redemption.

Take note of the 2007 SC Circular re: TRO and injunction of foreclosures [discussed in Rule 58] Different types of sale of property? o 1. Ordinary execution sale Governed by Rule 39 o 2. Judicial foreclosure sale Rule 68 o 3. Extrajudicial foreclosure sale Act 3135 What is the jurisdiction of courts in JF? o Any right title or interest over real property depends on assessed value. So decide whether its RTC or MTC.

Rule 69 Partition In the last five years, there were questions in the Bar exam, but they involved EJ partition, not J partition. Compare an EJP from a JP? o JP covered by Rule 69 You must implead all the co-owners because everyone is an indispensable party o EJP covered by Rule 74 What are the two stages in JP? o 1. Determination of existence of a co-ownership The co-ownership is created by agreement of the parties or by operation of law o 2. Partition of the property Who institutes action for JP? o Any co-owner What is the role of the commissioner? o There is a need to refer the matter to a commissioner. But remember that under this rule, it is NOT mandatory. If the parties agreed, the matter will not be referred. (As compared to expropriation, where failure to refer to commissioners is a violation of due process) Step-by-step example of JP: o There is a co-ownership created by death (inheritance) o An action was instituted under Rule 69.

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The provision of law does not provide for an answer. But in the absence of rules, there is an answer. So file one. o The pre-trial. o Then parties can agree. If they do, there will be a judgment based on the stipulation of the parties. o If there is lack of agreement, refer to commissioners. What if the property cannot be divided without prejudice to the interest of the parties? Commissioners can assign the property to one party, who reimburses the others If one party asks that the property be sold instead, the commissioners sell it What is the procedure for approval of the Commissioners report? Same as expropriation (10 days to object and court may accept, reject, etc. it) Examples of EJP: o 1. Affidavit of self-adjudication o 2. EJP upon a notarized public instrument o 3. Even if there is petition for JP, but the parties agreed, it will be treated as an EJP Needs publication Do you need a bond? o For JP, no. o For EJP, yes, for personal property. Requisites of EJP? o 1. There is no will o 2. There is no debt o 3. If there are minors, there is appointment of guardians Until what period can you contest the distribution of the estate under EJP? o Within a period of 2 years. Can you contest a JP? o Paramount rights cannot be prejudiced, even if there is judgment already Can JP cover both real and personal properties? o Yes.

Distinguish. o Forcible entry possession by reason of force, intimidation, strategy, threat, or stealth o Unlawful detainer previous lawful possession but by violation of K or expiration of the period, it became unlawful What is the most important allegation in FE cases? o Prior physical possession and when o This must be proved because it is the way the 1 year period is counted What is the most important requirement in UD cases? o A demand letter is a specific requirement o 1. There is a demand to pay unpaid rentals or comply o 2. AND vacate There must always be a demand to vacate for unlawful detainer o What if the demand letter is defective? The complaint can be dismissed. A defective demand letter is jurisdictional. o When is demand not required? Expiration of contract, because theres nothing left to pay o When should demand to vacate be given prior to action for unlawful detainer? 15 days prior in case of land 5 days prior in case of buildings What is the period to file this action? o Within 1 year of entry into the property for forcible entry Except if done by stealth 1 year from discovery of entry and prohibition o Within 1 year of the last demand for unlawful detainer Can you touch on the question of ownership in FE and UD cases? o Yes, but only to preliminarily determine who is entitled to possession. o But the determination is not binding /prejudicial to future questions of ownership. Salient portions of procedure: o In ejectment cases, unlike ordinary cases, the court can dismiss the case outright.

Rule 70 Forcible entry and unlawful detainer

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Absence of an answer will not lead to default, but a judgment of the court. No need to declare the defendant in default. o There is a Preliminary conference, just like summary procedure. But after preliminary conference even without position papers, the court can render judgment if it is already satisfied. o Third chance to make a decision: 30 days from filing of last judicial affidavit or position paper How do you stay execution of the MTC decision? o 1. File notice of appeal and pay filing fees o 2. Post a supersedeas bond Covers arrearages o 3. Pay the monthly rentals before the trial court o What if the defendants appeal is clearly frivolous or dilatory or the plaintiffs appeal is prima facie meritorious? Upon motion of the plaintiff, within 10 days of perfection of appeal, the RTC may issue a writ of preliminary mandatory injunctions restoring the plaintiff to possession of the property Can you file an MR in an ejectment case? o No, it is a prohibited pleading. o Dont file an MR, file a notice of appeal. Are you entitled to a provisional remedy? o Yes. You can apply for a TRO or preliminary mandatory injunction so you can recover possession in the pendency of the case. o But you have to file it within 5 days from filing of the complaint. In the rule on property, it says 10 days. What prevails: 5 days. Can you appeal? o Yes. The appeal will be elevated to the RTC. o The decision of the RTC, once final, is executory and cannot be stayed. o Even an appeal will not stay the execution. o Benedicto v. CA: If you can get a preliminary injunction or TRO from the next level court, it can be stayed. What is the mode of appeal from RTC decision in exercise of its appellate jurisdiction? o Petition for review

Can you file an MR before you file a petition for review? Yes, because RTC is an appellate court and not subject to rules of summary procedure. What is accion publiciana? o Action to recover right to possess property o Filed in the RTC or MTC depending on property value o File within 10 years after possession was lost What is accion reivindicatoria? o Action to recover ownership of property o Follow same valuations for jurisdiction o Filed within 10 years or 30 years, as the case may be (if the defendant is in GF or BF) Usually, ejectment suit is in personam. But who else can be bound by the judgment even if not impleaded? o 1. Trespasser, squatter, or agent of defendant occupying the property to frustrate the judgment o 2. Guest of the defendant or member of family o 3. Sub-lessee, co-lessee o 4. Transferee pendente lite or privy of defendant Will the filing of another action for annulment of sale, cancellation of title, etc. suspend the action fro ejectment? o No. Note that the other actions all deal with ownership and ejectment is just a matter touching on possession so the actions can coincide.

Rule 71 Contempt What is direct contempt? o An act of disrespect in the presence of, or so near the court of a judge o It MUST be within the four corners of his office o Ex. Refusal to take the witness stand or refuses to take an oath. Or wearing shorts in court. Or your phone keeps ringing. What is the nature of direct contempt? o Direct contempt is summary. You will not be asked to explain. Distinguish from indirect contempt. o Contempt which is in violation of order or process of court. Ex. failure to comply with subpoena of court. o There is notice and hearing.

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How do you charge? o For direct contempt, there is no need to charge. You just need to disobey or disrespect. o For indirect contempt, there are two ways: 1. Formal charge of the judge motu propio 2. Upon a verified complaint filed and docketed separately o Where do you file case for indirect contempt? If against an RTC, file in the RTC If against MTC, either: RTC Or MTC, subject to appeal to RTC X had a main case pending in an RTC branch in Makati. X obtained a preliminary injunction but the other party refused to comply. Can he file a motion for indirect contempt in the same court that issued the injunction? o No, a motion for indirect contempt is NOT a remedy now. o You file a verified petition (separate case). o After it gets raffled to another branch, you can either: Let them proceed separately File a motion to consolidate. What is your remedy for direct contempt? o Its immediately executory, so you can stay its execution by posting a bond. o File a petition for certiorari or prohibition based on GADALEJ. What is your remedy for indirect contempt? o Remedy is an appeal. o Judgment will only be stayed from being executed by posting a bond. What are the penalties for direct contempt? o If in the RTC or higher court, imprisonment up to 10 days. Fine not exceeding 2,000. o In MTC, imprisonment not exceeding 1 day. Fine not exceeding 200. Penalty for indirect contempt? o RTC or up. Imprisonment not exceeding 6 months, Fine not exceeding 30,000. o MTC not exceeding 1 month. Fine of 5,000 pesos.

When is imprisonment imposed? o When the contempt stems from the refusal or omission to do an act which is yet in the power of the respondent to perform he may be imprisoned by the court until he performs it What is difference between criminal and civil contempt? o Criminal contempt disrespect of the court/judiciary o Civil contempt violation of right of other party o Can there be administrative contempt? See below (QJAs) o In case of absence of rules in QJA, what is the rule? Venue is RTC where the contemptuous act was performed (default) Rules of Court apply

PART II: CRIMINAL PROCEDURE General matters, jurisdiction When did Rules on Criminal Procedure take effect? o Dec 1, 2000 What is the rule on venue and jurisdiction? o VENUE IS JURISDICTIONAL. The place of commission determines jurisdiction. o Contrast with civil cases where these are separate concepts. o The crime of stabbing was committed in Makati; where can it be filed? ONLY in the courts of Makati. o What is the exception? Transitory and continuing offenses, wherein one or more of the elements happened in more than one venue. Ex. Estafa, where the elements may be committed in different places (ex. misappropriation in one place and damage in another). Ex. BP22 either place of issue, or where the check bounced Can an offense be committed outside the Philippines yet be filed here? o Yes.

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1. Exceptions under article 2 of the RPC 2. Under the Human Security Law (Sec. 49) Covers acts of terrorism Even if the act was committed outside the Philippines (ex. before a consular or embassy of the Philippines and it was an act against an officer, or in a Phil. Ship or airship) Act against Philippine citizens or against a specific ethnic group. But there can be instances where the hearings are conducted elsewhere. Is this an exception? o No, its not an exception, even if there are instances like the Ampatuan case being heard in Manila instead of Maguindanao, or Mayor Sanchez case being heard in Pasig instead of Laguna. o What happened here was a mere transfer of venue. What was transferred was the VENUE OF HEARING, but the place of institution was still the place where the crime was committed. o Where is this rule allowing transfer of hearing found? Found in the Constitution, and subject to approval of the SC. What is the jurisdiction of courts under RA 7691? o RTC: Penalty exceeds six years imprisonment W/N committed in MM or outside MM does not matter at all. Regardless of fine or accessory penalty. o MTC: Penalty does not exceed six years imprisonment. o What if the penalty consists of just a fine? SC Circular 09-94 If the fine exceeds 4,000 pesos, RTC has jurisdiction. If it does not exceed 4,000 pesos, the MTC has jurisdiction. What is the jurisdiction of Special Agrarian Court? o This is important because there can be a penalty for its violation. o DAR court has exclusive jurisdiction over all matters pertaining to the DAR Law

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Exception to DARs exclusive and original jurisdiction are matters pertaining to just compensation which goes to the courts Also and more importantly the RTC as special Agrarian Reform Court also has exclusive and original jurisdiction for prosecution of all criminal cases under the DAR Law What is the jurisdiction of the Sandiganbayan? o 1. The accused is at least a Salary Grade 27 employee. o 2. And the office must be a constitutive element of the offense. o Can you be charged of offenses falling under the RPC? Yes. Can there be instances when you are not SG27 and still be under the SB jurisdiction? o Yes, if there is an express provision. o Serrano: UP Student Reagent is a public officer under the SBs jurisdiction. She claimed that she did not get any compensation and she was not a public officer. While the first part of 4a only covers officials SG27 and above, the second part covers officers whose positions may not be SG27 and higher, but who are by express provision of law are placed under the SB. Sec 4a(1g) gives the SB jurisdiction over officers in State-owned universities [Student Reagent is part of the board] What if the public officer is not SG27 but the office was a constitutive element of the offense? Which court has jurisdiction? o Regular courts, subject to appeal before the SB. o Because the SB has both original and appellate jurisdiction. What if there is one public officer falling under the SB jurisdiction and the other is not? o They can both be charged as co-accused under the SB if at least one is SG27. o Esquivel v. OMB: There was a session in Sanggunian involving both a Municipal Mayor and a Barangay Captain. The MM was charged in the SB (since he was SG27) and the Brgy. Captain was charged as co-accused, even if he was not SG27. HELD: Valid, because at least one of the co-accused was SG27.

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What if a co-accused is a private party? o Yes, the SB can have jurisdiction over him. Which court has jurisdiction to issue hold departure orders? o Monejar: An MTC CANNOT. Only an RTC can issue a hold departure order. o Circular 39-97 Hold Departure Orders by RTC only apply to offenses cognizable by second level courts. o But there are instances when the DOJ Secretary can issue a hold departure order, right? Yes, but this is not under the law but under the powers of the Executive. There must be probable cause for the DOJ to issue one. o What is the difference between a HDO and a watch list? HDO prevents you from leaving. Watch list youre only being watched, but you can leave. What determines jurisdiction of the court? o It is determined by the allegations in the information o And any one of the ingredients of the offense or the offense itself must be committed within the territorial jurisdiction of the court. What is the concept of a prohibited second MR? o As a rule, a second MR is a prohibited pleading. o Padiola: Such motion is prohibited and will not be allowed except 1) for ordinarily persuasive reasons and 2) only after express leave has been obtained. o A wrong mode of appeal under Rule 56 will cause the dismissal of the case. o Does dismissal of a criminal charge cover dismissal of an administrative case? No. It does not prevent the continuation of an administrative action. The degree of evidence is different (proof beyond reasonable doubt and substantial evidence) What is the jurisdiction of the OMB? o Covers any act of malfeasance/misfeasance or omission by a public officer.

It does not have to be in related to an office. The mere fact that you are a public officer means that the OMB has jurisdiction. o Is the OMB a court? No, its an investigative body. What is the difference between the powers of investigation of the OP and the OMB? o Unlike the Office of the Prosecutor, which can only act upon an affidavit complaint, while the OMB can investigate upon: Own initiative, even without a formal complaint Inquiry into acts of government o Method of filing a complaint before the OMB is direct, informal, speedy, and inexpensive. Just sufficient information is needed. Which has primary jurisdiction to prosecute cases cognizable by the SB OP or the OMB? o The OMB. The OMB has primary jurisdiction over cases cognizable by the SB. He can take over at whatever stage of investigation by another prosecutor. What is the Office of the Special Prosecutor? o The OSP is merely a component of the office of the OMB and may only act upon authority by the OMB. o Without authority, the OSP cannot file an information o The OMBs power to prosecute carries with it the power to file an information How do you review the actions of the OMB? o Ordinarily, it can be reviewed by the CA under Rule 43 (for QJAs). o If it involves a criminal case and there is GADALEJ, you go to the SC. o Which decisions of the OMB in administrative cases are unappeallable? 1. Public censure, reprimand, 2. Suspension of not more than 1 month 3. Fine of not more than 1 month salary Can a case be dismissed outright by the OMB? o Yes, for want of palpable merit. Can the OMB prosecute cases within the jurisdiction of regular courts?

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o The powers granted to the OMB are very broad, so it can. Who represents the people during trial? o Office of the Prosecutor. Who represents the people during appeals? o Solicitor general What is controlling in determining the age of a child in conflict with the law? o Remember, below 15 years of age, he is exempt o 15 to below 18, exempt if without discernment If with discernment, go through juvenile law o What controls is NOT the age at the time of promulgation of judgment, but the age at the time of commission of the offense. What exceptional circumstances call justify an injunction to restrain criminal prosecution? (IMPT) o 1. To afford adequate protection to the constitutional rights of the accused o 2. Necessary for orderly administration of justice or to avoid oppression/multiplicity of actions o 3. Double jeopardy is clearly apparent o 4. Charges are manifestly false and motivated by lust for vengeance o 5. When there is clearly no prima facie case against the accused and a motion to quash on that ground was denied

Rule 110 institution of criminal actions When does distinguishing between offenses committed in and outside of MM matter? o If for purposes of jurisdiction of courts, there is no need to distinguish between MM and Outside MM (OMM), for purposes of institution of the criminal complaint, you will have to distinguish between MM/Chartered City (CC) and OMM. MM/CC Office of the Prosecutor Office of the Prosecutor Office of the Prosecutor OMM/OCC Office of the Prosecutor Provincial Prosecutor/MTC Provincial Prosecutor/MTC

Requiring PI Not requiring PI Falling under Rule on summary proc. (ex. BP22)

So who can conduct a preliminary investigation? o 1. Prosecutor. The old rule which includes an MTC judge was already amended. o 2. Ombudsman. Can there be direct filing in a Metropolitan TC (Met. C)? o No. Just a MTC (Municipal Trial Court). o Because only MM/CCs have Metropolitan TCs. What is the procedure in MM, requiring PI? o The entire Rule 112, Sec. 3: 1. File complaint 2. Investigating officer dismisses it or issues subpoena to respondent 3. Respondent submits counter-affidavit 4. If subpoena impossible or no counter-affidavit, investigating officer decides based on complaint 5. If there is counter-affidavit, the officer can set up a clarificatory hearing 6. Resolution o N.B. Remember, all periods here are 10 days What is the procedure in MM, not requiring PI? o Only Rule 112, Sec 3(A): 1. File complaint o Then the prosecutor already decides On a BP 22 case, when is the prescriptive period deemed as interrupted? Upon filing the case in court or filing of the case before the Office of the Prosecutor? o Note that prescription is 4 years for BP 22. When Act 3326 was passed on 4 Dec 1926, preliminary investigation was conducted by Justices of the Peace (equivalent of MTC before), and so when it was filed with the JOP for PI, then the prescriptive period is interrupted. o So by filing the case with the Office of the Prosecutor, it interrupts the running of the period. o (It cited a case where the SEC is investigating a violation of the Securities Code, and it was deemed to have interrupted the period.)

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Who has control and supervision of a criminal case? o The public prosecutor. o So what are the 3-fold duties of a PP? 1. Conduct preliminary investigation 2. Prosecute a case 3. Conducting inquest proceedings, consistent with Rule 112, Sec. 6 o It means that the public prosecutor must be there during the case. If the prosecutor is absent, the hearing will be cancelled. o A PP cannot come to court because he needed medical attention. He was not able to inform the court that he could not come. The counsel of accused asked if he could proceed even if the PP was absent, subject to the prosecutors right to cross-examine the witness upon his return. When the PP returned, he claimed the proceedings were null and void. The other party said that the PP can cross-examine anyway. Who is correct? The PP. The proceedings were null and void because he was not present. o So even if the PPs presence is a mere passive presence, and not an active presence, that is fine, because everything is still under his control and direction. What is the only exception? o The private prosecutor can obtain a certification from the Chief of the Prosecution Office to prosecute even in the absence of a PP. This certification lasts until the end of the case. What is the role of a private prosecutor? o The private prosecutor intervenes for the private offended party. He does not represent the people. What is the rule on private offenses? o Adultery and concubinage cannot just be instituted by anyone. It must be the offended spouse. You would have to likewise implead as accused the paramour and the partner (so both), unless either is dead. o If he has condoned, pardoned, etc. the offense, he/she cannot file. o Same rule applies to seduction, abduction, and acts of lasciviousness. Who can institute a rape case?

The minor, the victim, parents, grandparents, guardian, State in default o The minor now can file alone, without assistance of parents (esp. when the parents are the offender) What about defamatory statements in connection with adultery or concubinage? o Can only be instituted by the offended party. When is there sufficiency of information? o Sections 7-12 are elaborations of Section 6. o 1. Name of the accused Full name (first and surname) If his full name is not known? Can use a nickname or appellation (Boy Singkit) What if there is no nickname or appellation? Use John Doe or Jane Doe. For civil cases, you use unknown owner or unknown heir or whatever. o 2. Designation of the offense by statute Ex. murder, homicide, estafa If there is no designated name of the offense, just say Violation of Sec. 5 and 11 of the Dangerous Drugs Law Recent SC decision: Even in the absence of a particular section, but the allegation in the information shows that you know the nature of the offense, then there is substantial compliance. o 3. Qualifying and aggravating circumstances Both should be alleged If it is an aggravating circumstance, it must be alleged. If it is not alleged but proven in trial, can it be taken against the accused? No. Even more reason for qualifying circumstances. How about mitigating circumstances? No need to allege, because it is part of the defense of the accused. o 4. Facts or circumstances constituting the offense.

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Cause of accusation is the equivalent of a cause of action in a civil case The language of the information should be in a language known to the accused. What is the reason for this? Rule 116 says that the accused must be properly informed of the nature and cause of accusation against him to make a proper arraignment and plea. o 5. Date of commission Do you need to provide the specific date of commission of the offense? No need. Just an approximation is needed. Exception: if the date is a material element of the offense. Election offense Infanticide Is date a material element of the offense of rape? No. o 6. Place Need to show that it is committed within the territorial jurisdiction of the court But for offenses like trespass to dwelling, violation of domicile, election cases, arson, etc. where the place of commission is material, you have to allege it with particularity o 7. Name of the offended party Place it there, if it is known If it is a crime against property, you describe the property so that you will know who the offended party is What if it is later on discovered? It can be inserted in the information Only one offense per information o Is there an exception? Yes. If there are multiple offenses in the information and the accused fails to object, each offense proved can be used against him. Can you amend the information?

o Yes. Can you substitute the information for another? o Yes. o We always remember amendment but forget about substitution. So remember this. When can you amend or substitute? o Whether a matter of form or substance, there can be amendment if it is before plea. o Can you still change the substance of an information after a plea? No. o Can you still change a matter of form after a plea? Yes, as long as it will not prejudice the right of the accused. What is the test to know w/n it will prejudice the rights of the accused? If the original defense of the accused will have to be changed due to the change in the formal amendment. Ex. The original case is for rape, except that in the formal amendment, it was alleged that the age should have been 17 and not 18 due to a typo. This will prejudice the rights of the accused. What is downgrading and exclusion? o Downgrading is lessening the offense (ex. robbery to theft, murder to homicide, seduction to acts of lasciviousness) o Exclusion is removing from the information a person o When must downgrading or exclusion take place? Before plea. o What are the requirements for exclusion or downgrading? 1. Upon motion of prosecution 2. With leave of court 3. With consent of the offended party What is difference between exclusion before plea and discharge of the accused as State witness? o If exclusion, there is no need to submit an affidavit. In discharge, you have to.

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In exclusion before plea, double jeopardy has not yet attached so you can be charged again later on. In discharge as State witness, it is tantamount to an acquittal so double jeopardy sets in. What is substitution? o The information will be substituted with a new one to be filed, if the prosecution cannot prove the offense charged in the prior information o The accused will not be released until a new information has been filed as a substitute

Rule 111 civil liability in criminal cases What is the general rule in civil liability? o Once a criminal action is instituted, the civil is likewise instituted Exceptions? o 1. Reservation When is reservation not allowed? BP 22 cases When can reservation take place? Any time before the prosecution commences with presentation of evidence considering the circumstances of the case. Take note of the underlined part because the timeline is not a strict rule. o 2. Instituted ahead of the criminal case o 3. Waived When is there need for filing fees? o Moral, nominal, exemplary, temperate damages require filing fees. o Actual damages do not require filing fees. o For BP 22, what is the rule? For EVERYTHING claimed, even liquidated and actual damages (this is the face value of the check). Consolidation of writ of amparo cases: o Can you consolidate a Writ of Amparo case with a civil case or an admin case? No.

Can you consolidate a Writ of Amparo case with a criminal case? Yes. Follow the general rule: if the civil case was instituted ahead of the criminal case, the civil case is interrupted in whatever stage and the criminal case proceeds until judgment. And there is an option to consolidate. What are kinds of acquittal? o 1. Based on reasonable doubt o 2. Did not commit the crime o 3. Purely civil o 4. The acts from which the civil liability arises from were not committed What is a prejudicial question? o A criminal case will be suspended when there is a pending civil case which must be suspended until the prejudicial question is resolved. o What are the requisites? 1. The civil action was filed first 2. The resolution of the civil action is determinative of the criminal action o Give an example of a prejudicial question. Can trespassing be only committed against the owner of a property? No. {Check this} So you need not file a civil case to determine who owns the property first. Theft: determine first who owns the property Who determines whether there is a prejudicial question? The court. What will be suspended? The criminal case. o Where do you file a motion to suspend on the ground of prejudicial question? 1. The court 2. The prosecutor conducting PI o When do you file the motion to suspend?

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Anytime before the prosecution rests its case Can an administrative case suspend a criminal case on the ground of prejudicial question? No. o Can another criminal case suspend a criminal case on the ground of prejudicial question? No. What is an independent civil action? o One that can proceed independent of a criminal case o Arts. 31-34 of the NCC o Art. 2176 of the NCC (quasi-delict) If there is an independent civil case filed before the criminal case, is the independent civil case suspended? o No. o If there is a criminal case filed ahead, do you need to reserve the independent civil action? No. YOU DO NOT RESERVE AN INDEPENDENT CIVIL ACTION. o Can it proceed side by side with a criminal case? Yes. Compare with a reserved civil action (i.e. not independent). It cannot proceed side by side. o Must an independent civil action be reserved? No need to be reserved, and it will not be suspended If the civil action was instituted ahead of the criminal, and there was a judgment stating that there was no civil liability, is the offended party barred from filing another criminal action? o No. Again, the burden of proof is different. o

Rule 112 Preliminary investigation What is PI? o Where the prosecutor determines whether there is probable cause to file a case against a respondent Distinguish from inquest? o Inquest is conducted by an inquest prosecutor, when one is caught under the three exceptional circumstances provided in law

Who can conduct preliminary investigation? o City prosecutors, and their assistants, Provincial prosecutors and their assistants o OMB, and if they authorize the Special Prosecutor he can too What is the procedure for PI? o 1. After receiving affidavit-complaint, the prosecutor will determine within 10 ten days whether there is probable cause Raffle Assigned to assistant prosecutor o 2. Assistant prosecutor issues a subpoena to the respondent o 3. The respondent will issue a counter affidavit within 10 days In practice there can be a reply or rejoinder, but this is not provided by the rules o 4. Optional clarificatory hearing o 5. Resolution Who prepares the resolution? The Assistant prosecutor Is it the city prosecutor or the assistant prosecutor? Assistant prosecutor prepares it, and then the city prosecutor approves it City prosecutor has discretion to dismiss the complaint, file the information himself, or ask another assistant/State prosecutor to file it o Regardless of recommendation Can a resolution be issued by an assistant prosecutor even without approval of the City prosecutor? No. What if the City prosecutor does not agree with the recommendation of the assistant prosecutor? o He has discretion to reverse it. If the assistant prosecutor believes that there is probable cause, he prepares a resolution AND an information. Information is filed in court and resolution served to the parties. If he does not find that there is probable cause, he only prepares a resolution. But regardless, no resolution can be

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issued without the approval of the City or Provincial prosecutor. Can you file a complaint with the OMB? o Yes, and he will then investigate. He can also motu propio investigate. o Can the NBI conduct preliminary investigation? No. Is service of a subpoena and receipt thereof necessary for the Office of the Prosecutor to obtain jurisdiction over the respondent? o No. o There is still no case filed against him, just an investigation. o Even if he does not get to file a counter affidavit, there can still be a resolution issued against him. X is arrested, accused of possessing illegal drugs, without a warrant. What is the procedure? o 1. X is taken to the police station o 2. X can choose to apply for preliminary investigation, or have them proceed with inquest If X applies for preliminary investigation, what happens? You sign a waiver of Art. 125 of RPC Will X be released? If he applies for bail. Where does X apply for PI? Before the inquest prosecutor. Where do you apply for bail? With the Executive Judge. (This is a trade secret) What is the procedure if someone is arrested for vagrancy, without warrant? o Note that vagrancy does not need preliminary investigation, so the information can be directly filed with the MTC. o Can you apply for bail? Yes, because you were already arrested. You were sued for slight physical injuries in MM, and it was not in flagrante delicto, so it was on the basis of affidavit complaint. What happens?

There is no need for preliminary investigation. So the prosecutor will determine probable cause, then will file the information in court. o Is there a need for the respondent to file a counter affidavit here, and is there need for preliminary investigation? No. When are inquest proceedings applicable? o It must be due to a warrantless arrest: A. In flagrante delicto B. A crime has been committed and the police officer has personal knowledge that the person committed the crime C. Escaped from confinement or escape o Also, it must be for an offense that requires PI (at least 4y, 2m, 1d) If no need for PI, just file affidavit-complaint to the office of the prosecutor. (Because only 3A is required) o How do we distinguish (A) from (B)? First kind the arresting officer was there when the crime was committed Second kind the arresting officer has personal knowledge If a person is arrested with a warrant can he be placed on inquest? o No. What if he was arrested for an offense for which he was previously charged, and then he escaped from detention and he was arrested without a warrant? o Inquest must be conducted. How do you appeal a resolution? o Within 15 days, file a Petition for Review to the DOJ. o Must the petition be verified? Yes. o Can the period be extended? No. o If the DOJ decision is adverse, to where do you go? Rule 43, to the CA (Or Rule 65, to the CA if there was GADALEJ) Only to the SC if its the OMB

o o

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(Or Office of the President if punishable by reclusion perpetua or higher) o Can you have the DOJ review the resolution if the offense in question does not require a PI? No. This is clear in the circular. The offense must require, for its charging, at least preliminary investigation OR has gone through reinvestigation. What is reinvestigation? There was a regular PI, and you were not satisfied with it, so one files for a reinvestigation with the Office of the Prosecutor or in court. This is not provided in the rules. Do all offenses in the RTC require PI? o Yes, because all offenses charged in the RTC exceed 6 years (and PI is for 4y,2m,1d) Once the information is filed in court, what can the judge do? o 1. Issue a warrant of arrest, after personally determining the existence of probable cause o 2. Dismiss the case for absence of probable cause o 3. The court can call for a hearing to determine probable cause So what are the options for a judge in an RTC case? o Just these three. What about the MTC? Distinguish: o A. Not exceeding 6y, but more than 4y,2m,1d: See above [the three options]. So its like the RTC. o B. Below 4y,2m,1d, more than 6m Same as three above, but the issuance of the warrant is up to the discretion of the court . If the court believes the offense is not so grave, it may not issue a warrant and will just issue summons. o C. Not more than 6m, falling under the rule on SP The court cannot issue a warrant of arrest. Instead, the court requires you to file a counter affidavit So when does the court issue a warrant of arrest? Only when there is failure by the accused to appear in court despite repeated notice What is an example of a crime involving summary procedure?

BP 22 When can you file a motion for determination of probable cause? o After filing of information, but before the judge has acted on it o Can you file after issuance of a warrant of arrest? No. Will the filing of a petition for review suspend the issuance of a warrant of arrest? o No. The mere filing of a petition for review will not suspend the issuance of a warrant of arrest. o What it suspends is the arraignment. o For how long? 60 days suspension of arraignment.

Rule 113 Arrest Does the arresting officer need to show the warrant of arrest? o 1. Inform cause of arrest o 2. And that a warrant had been issued for his arrest o Exception to this? 1. Flees/forcible resistance 2. Informing the accused imperils the arrest What is the duty of the arresting officer if the arrest is without a warrant? o 1. State authority to arrest o 2. Cause of the arrest o Exceptions to this? 1. Engaged in commission of the offense 2. Pursued immediately after offense 3. Flees/forcible resistance 4. Informing accused imperils arrest What about arrest by a private person? o 1. State cause of arrest o 2. And intent to arrest him What are the other circumstances where there can be arrest without warrant? o 1. Judicial bondsman may arrest him to surrender accused to court o 2. Attempt to depart the country o 3. Person who has been lawfully arrested and has escaped

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After arrest what do you do? o 1. Bring him to the police station o 2. He will be incarcerated until he files for bail What if he does not apply for bail? He will stay in the city jail in the pendency of the case. If its a non-bailable offense, its a different procedure. Just wait for arraignment. What if he applies for bail? He is released from the city jail and he has responsibility to attend arraignment/appear o 3. Afterwards, there will be an arraignment What if a person is arrested without a warrant? o 1. Brought to the nearest police station o 2. Inquest proceeding will be done Brought to the Prosecutors Office o 3. The inquest prosecutor can either release you or keep you in detention When the inquest prosecutor releases you, does this mean your case is dismissed? No. You are released for preliminary investigation. This just means the affidavit-complaint of the police officer used as basis for inquest will be filed with the prosecutor as an ordinary case. What if the prosecutor says detain? You can either apply for preliminary investigation or not. What if you apply for preliminary investigation? o You sign a waiver of Art. 125. o Can you then apply for bail? Yes. You file it with the executive judge. After waiver of 125, what is the next step? o Go to preliminary investigation.

What if you did not ask for a preliminary investigation? o An information can be filed o Afterwards, there is arraignment

Rule 114 Bail When does bail apply? o Whenever there is deprivation of liberty When is bail a matter of right? o Before conviction, whether MTC or RTC Except for cases punishable by RP, LI, DP o After conviction, if MTC When is it a matter of discretion? o After conviction, if RTC What are the types of bail? o 1. Cash bond In a cash bond, how much is deposited in court? The full amount Who receives it? Municipal, city, or provincial treasurer or the CIR Clerk of court where the case is pending o 2. Corporate surety Just pay the premium o 3. Property bond What is the most important requirement for a property bond? The owner must be resident of the Philippines Registration of the lien must be done within 10 days from approval of the bond Does the accused need to be the owner of the property? No. o 4. Recognition Can you be released on your own recognizance? Yes. What are the stipulations in a bond?

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1. Bond is effective upon approval and unless cancelled Lasts until promulgation of judgment in RTC, whether case is originally filed or on appeal o 2. Accused must appear in court if required o 3. Failure to appear in trial is deemed a waiver Trial can proceed in absentia o 4. Bondman must surrender accused to the court for final judgment From when and up until when is a bail in force? o From approval, until promulgation of judgment by the RTC o Whether originally filed there or on appeal N.B. thus if the case started in the MTC, you filed for and were given bail, it can continue up to appeal in the RTC

< Kira notes follow > Rule 113 People v. Laguio requisites inflagrante delicto; a 2007 case 1. Person to be arrested must execute an overt act that he has committed, actually committing, or attempting to commit 2. Overt act is done within the presence or within the view of the arresting person or officer Presentation of the informer/informant is not indispensable in the prosecution of a criminal case. Hot pursuit only applies: 1. Offense has just been committed (If there is just an attempt, or the person is just committing, hot pursuit will not apply) 2. No requirement that it be done in the presence of the officer. It is only required that the arresting officer with an independent and personal assessment has probably cause to believe that a crime has been committed. Rule 114 Issues with grant of bail: 1. The General Garcia issue He was charged of plunder with the Sandiganbayan, which is a non-bailable offense. He is not entitled

to bail. He has no right to bail, as a rule. But they can file a petition for bail. Then he entered into a plea bargain. (When can you enter into plea bargain? ANS: At any time before trial. You can enter into plea of guilt to lesser offense during arraignment, or even after arraignment but before trial, or during pre-trial.) Here the plea bargain to a lesser offense of corruption was entered into after trial. Is he now entitled to bail? a. When there is conviction, are you still entitled to bail? As a rule, no. But when you appeal the conviction, you can still apply for bail, as long as the decision is not final and executory, assuming that it is a bailable offense. In this case, the bail is a matter of discretion to the court. b. When the judgment has become final and executory, can you still apply for bail? As a rule, no. c. What are the requirements for a plea of guilty to a lesser offense? i. Notice to prosecutor ii. Consent of offended party d. If the trial court convicted you of an offense which is bailable (original charge was non bailable offense), the bail should be applied with the appellate court. Bail as a Matter of Right v. Bail as a Matter of Discretion v. Petition for Bail for Non-Bailable Offenses 1. Petition for Bail: a. Case: Governor Leviste shot his aid. On advice of counsel, he surrendered and was charged only with homicide. It is a bailable offense. He can avail of bail, as a matter of right. It was in the RTC, before conviction, the offense is punishable not by reclusion perpetua, death, or life imprisonment. Homicide is punishable with reclusion perpetua. But then the information was withdrawn, and he is now charged with murder a non bailable offense. He will be arrested. Is he now entitled to bail? ANS. NO. But he can file a petition for bail. Here, the court granted his petition for bail. The court was convinced the evidence of guilt against him was not strong. Trial proceeded and there was promulgation of judgment, that he was guilty not of murder, but of homicide. Can Leviste apply for bail now? ANS: He is entitled to bail as a matter of discretion. b. Lets say you were charged with offense where bail is a matter of right (e.g. estafa), but then convicted. You can apply for bail, but it is a matter of discretion.

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2.

3.

What is the nature of a hearing for the petition for bail? ANS: Summary. d. Can we dispense with a hearing for bail? (When the judge thinks malakas un kaso ng prosecution)? ANS: NO. You cannot dispense with and ignore hearing for bail. e. Can there be joint summary hearing of petitions for bail? YES. f. Is an arraignment a prerequisite to a petition for bail? NO. Although the judge in the Ampatuan case required the accused to be arraigned before allowing the petition for bail. There is nothing irregular here though, the counsel for the accused allowed it. The very moment there is a deprivation of liberty, you can apply for bail. Bail as a Matter of Right a. Basta nasa MTC, bailable as a matter of right. b. In RTC, bailable as matter of right if: i. Before conviction ii. And not punishable by reclusion perpetua, death, or life imprisonment. c. The judge cannot deny bail that is matter of right; he can only increase amount of bail. Maceda case Bail as a Matter of Discretion a. In RTC i. Conviction ii. And not punishable by reclusion perpetua, death, or life imprisonment iii. And not accompanied by the ff instances, if the penalty exceeds 6 years: 1. Recidivist, habitual delinquent, etc 2. Previously escaped from legal confinement 3. Committed offense while under probabtion, parole 4. Flight-risk 5. Undue risk that he may commit crime during pendency of appeal b. Where will you apply? i. If appealed, before transmission of records: to RTC ii. If appealed, and the RTC conviction changed nature of offense from non bailable to bailable: to appellate court c. Bail as a matter of discretion has an enumeration of certain disqualifiers.

c.

i. If convicted, beyond 6 years, and with disqualifiers bail denied ii. If convicted, beyond 6 years, and no disqualifiers bail is matter of discretion iii. If convicted, less than 6 years bail matter of right iv. If convicted, less than 6 years, and with disqualifiers bail matter of discretion, but court will impose higher bail because of disqualifiers Mabutas v. Perello requirements for hearing for applications for bail 1. Bail as a matter of discretion is different from the exercise of discretion in petitions for bail 2. Bail is a matter of judicial discretion that remains with the judge. A hearing on application for bail is mandatory, whether bail is matter of right or matter of discretion. 3. In case application for bail is filed, judge is entrusted with ff duties: a. In all cases whether bail is matter of right or discretion, notify prosecutor of application for bail or allow him to give his recommendation b. When bail is matter of discretion, conduct hearing on application, regardless or not whether prosecutor wants to present evidence that guilt is strong c. Decide whether evidence of guilt is strong based on summary evidence of the prosecution d. If guilt is not strong, discharge accused on approval of bail What if charged with murder, petition for bail granted, then convicted of homicide? Entitled to bail as matter of discretion. The issue of whether evidence of guilt is strong is not relevant, because that only applies if the offense is non bailable. What if charged with murder, petition for bail granted, then conviction of murder? Cant apply for bail; the nature of offense is non bailable. Obviously having been convicted, the evidence of guilt is strong. What if convicted of offense not punishable of imprisonment beyond 6 years, is it still a bail as a matter of discretion? (That which is alleged is different from what is proven. Rule 120) It is now bail as matter of right. For purpose of judge determining if bail if excessive must consider parameters laid down in Section 9

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But for purposes of recommending bail by prosecutor they have their own administrative list Where to File Bail: 1. You were arrested in Kamagong (Makati), the case was filed in Makati. Action pending in same province/city where he was arrested. a. Apply in court where case is pending b. In absence or unavailability of judge, in any court in the area 2. Person arrested in Marikina, case pending in QC. Can person file for bail in QC? NO. Because when you arrested in Marikina, you will be taken to nearest police station in Marikina. So youll apply there in Marikina. 3. If youre in Cavite, but the case is pending in Makati, but you havent been arrested, you cant apply for bail in Cavite. 4. Arrested in Ilocos, case pending in Manila. He applied for bail in Ilocos and was granted. Later the records were sent to Manila. a. Should the records be sent to Manila? ANS: Yes. b. Is the judge in Manila obligated to accept the bail? ANS: Hes not required. He can require a new bail. Expat is out on bail, he always leave every few weeks, can he do that? Leave without approval of court? ANS: NO. Accused out on bail cannot depart from Philippines without securing approval of the court. If he departs without securing such approval, he can be arrested without a warrant. If accused is charged with vagrancy and has been in detention for almost 2 years, what should the judge do with the accused? In a voluntary surrender, you do not need a certificate of arrest, for an application for bail. The DNA Rule 1. Can a person who has already been convicted and serving sentence, apply for DNA examination? ANS: Yes 2. If the court finds after DNA evidence that the person serving sentence is not guilty, what will the court do? ANS: Person serving sentence must apply for habeas corpus.

Rule 115 Rights of the accused

A. Presumption of innocence How did the court apply presumption of innocence in P v. Dimalanta? o When circumstances lead to two or more inferences, one or more leading to innocence and one or more leading to guilt, the former should prevail. B. To be informed of the nature and cause of the accusation against him To be informed of the nature and cause of accusation against him: o Get an authorized interpreter if the accused does not speak Filipino/English When can a counsel de officio be appointed? o 1. During arraignment o 2. During trial o 3. Before records are elevated on appeal (accused informed of right to counsel by clerk of court at this point) o 4. In the CA When the accused signed his appeal by himself Or accused is in prison o 5. In the SC have their own guidelines C. Right against self-incrimination What is the concept of chain of custody in the DNA rule? o Usually its a concept that is connected with drugs, as re: possession of seized item from the scene of the crime o For purposes of evidence, it is considered for tampering or authenticity of the sample. If the sample has been tampered with, you cannot get an accurate result. What are the ways by which a laboratory can be accredited? o See Rules on DNA Evidence 7c What is the rule on filiation? o DNA results that exclude from paternity are conclusive o If the value of probability of paternity is less than 99.9% merely corroborative o If the value is 99.9% or higher it is a disputable presumption o Why is it just a disputable presumption? Because you can still argue that it would have been physically impossible for one to do it, or there is no access, and that there is someone who could have similar DNA makeup (twins, for instance).

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Differentiate corroborative from cumulative evidence? Corroborative proving same point, but different kind and character of evidence Cumulative Same kind and character, proving same point D. Right to be present in the course of the proceedings o What is the consequence of his absence in the hearing? There can be a trial in absentia if there already is arraignment and the accused is unjustifiably absent o When is his presence mandatory? The general rule is the he must be present at all stages of the proceeding. o Can this be waived? Yes. o Where and when should it be waived? There should be a stipulation in the conditions of bail. So as a rule, it cannot be waived. o What if the private complainant is absent? Its fine. E. The right to public trial o General rule is that the trial is public o When can the public be excluded? Found in Rule 119, Sec 21. (offensive to decency/public morals) o Does public trial include public viewing on TV or radio broadcast? No. It opens room for lawyers to grandstand. o Also recognized in evidence: F. Right to speedy trial o How many kinds of speedy trial? 1. Speedy disposition of the case (constitutional law) 2. Right to speedy trial (criminal law) o What is the difference? In the Crim Pro concept, you can invoke it anytime before or during trial. In Constitution, any time as long as the action is pending. o What is the remedy for speedy trial under the Constitution?

o o

Habeas Corpus Because your continuous detention has no more legal basis What if its in criminal procedure? Certiorari Prohibition Mandamus Rule 119 has a computation. How long is the maximum time between the arraignment and trial? 80 days If you dont follow number days, you could expect a MTD on ground of violation of right to speedy trial Entire period of trial? 180 days But why are a lot of cases that do not commence in time, and are not dismissed due to violation of this right? Because of the exclusions. What are the exclusions? 1. Other proceedings: Mental/physical examination of accused Other criminal charges Extraordinary remedies against interlocutory orders Pre-trial proceedings, as long as not exceeding 30 days Orders of inhibition or change/transfer of venue Prejudicial question Any period not exceeding 30 days when the accused is actually under advisement [Unavailable, unable] 2. Absence or unavailability of an essential witness Absent whereabouts unknown Unavailability whereabouts known 3. There is a co-accused over whom the court has not acquired jurisdiction or for whom time for trial has not run and no motion for separate trial is granted

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Cases: In one case, Pre-trial happened after 7 years. Delay was brought about by extraordinary remedies, like a Rule 65 certiorari. The right to speedy trial was invoked, but the SC said there was a valid exclusion But as a rule, extraordinary remedies must not be entertained and will not stop an ongoing criminal trial. Of course, there are special cases. In another case, there were 20 postponements. The witness requested by the prosecution was in the custody of the NBI, but did not bring the witness in. This was reasonable delay, and the prosecution was acting in GF. o What is VCO? Vexatious, capricious, oppressive VCO delays violate the right to speedy trial G. Right to confront witnesses presented against him o Basically, can cross examine H. Right to have compulsory processes to secure attendance of witnesses and production of evidence o Can apply for subpoena ad testificandum and duces tecum o Right to modes of discovery: Can apply modes of discovery in criminal cases. Rule 119, Secs. 12, 13, 15 Conditional examination of witnesses for the prosecution/accused. This is the equivalent of Rule 23 depositions in criminal trial. Purposes for prosecution: o

4. Mental incompetence or physical inability of the accused to stand trial [Upon motions] 5. Prosecution dismissed information upon motion and then filed another charge for the same case the time limit between the dismissal and the subsequent charge 6. Continuance granted by the court motu propio or on motion Memorize this list. Rule 119 Sec 3.

1. Sick or infirm, or unavailable 2. or the witness is about to depart. Purposes for accused: 1. Sick or infirm or unavailable 2. or more than 100km What is the difference if it will be availed of prosecution or accused? Prosecution: ONLY in the court where the action is pending Accused: Before any judge, member of the Bar in good standing, and if ordered by a superior court directing an inferior court I. Right to testify on his own behalf o Can the accused testify for the prosecution? Yes, but he can refuse o Can a party in a criminal case be asked a question that would raise civil liability but not criminal liability? [Answer unclear, but since its purely civil, I think the witness can be compelled] o What is the effect of silence? It should in no manner prejudice him J. Right to appeal o Will be discussed below (Rule 122-125)

Rule 116 Arraignment and Plea When must arraignment take place? o Within 30 days of obtaining jurisdiction over the person of the accused o Take note that pre-trial must happen within this same period, but after arraignment o What if the person is preventively detained? Follow the 3:10:10 rule. So its shorter (max 23 days) 1. From filing of information, case is raffled within 3 days 2. Arraignment within 10 days of raffle 3. Pre-trial within 10 days of arraignment What comes first, plea or arraignment? o Arraignment, where the information is read against him

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Can the arraignment be dispensed with? (Ex. by an accused that does not want to hear the information) Never. You cannot waive the arraignment. o Can the arraignment or reading be in a language different from what the accused knows? No. It must be in a language known to the accused. What about a belated arraignment? (P v. Trinidad) o This happened when they realized that there was no arraignment. There was a belated arraignment that was validated because the lawyer had an opportunity to cross examine and the lawyer actively participated in the proceedings. What are the kinds of pleas? o 1. Plea of guilty A. Plea of guilty to lesser offense Until when can you do this? o At very latest, pre-trial o At trial, cannot plea guilty to lesser offense B. Plea of guilty to capital offense [N.B. this is a moot and academic discussion] Punishable by death. What is required? o Conduct searching inquiry to see if it is voluntary and if he understands the plea What does it entail? o 1. Background check (age, education, socio-economic conditions) o 2. Conduct of custodial investigation o 3. Explain the nature of the offense and extenuating circumstances to the accused Hearing after the plea C. Plea of guilt to a non-capital offense

Should there be a hearing? o Its not mandatory D. Improvident plea What is an improvident plea? o Plea of guilty without fully understanding consequences of the plea o X pleaded guilty to homicide. He didnt know that if he pleaded guilty, there wont be any hearing anymore. Can he withdraw the improvident plea? Yes. When can it be withdrawn? o Any time before judgment of conviction becomes final (after appeal) What are the further actions of the court in case of an improvident plea? o If the sole basis of conviction is the improvident plea, it is remanded for further proceedings in the trial court. (Ex. the SC sends it back to the RTC) o If the conviction is supported by other evidence, the SC will render judgment 2. Plea of non-guilty A. Conditional plea What is this equivalent to? o Its akin to a plea of not guilty B. Refusal to enter a plea The court assumes its not guilty Can a representative enter a plea of not guilty? o No. The accused must be the one to enter the plea. [Should the accused be present during promulgation of judgment?]

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Yes. Is there an exception to this rule? Yes, for light offenses. The accused can be represented. C. Direct plea of not guilty D. Say guilty but present exculpatory evidence When is there suspension of arraignment? o 1. Accused suffers from unsound mental condition o 2. Prejudicial question o 3. Petition for review pending with DOJ Not exceed 60 days o 4. Pending incidents: A. Motion to quash B. Motion for inhibition C. Motion for bill of particulars Can there be a bill of particulars in a criminal case? o Yes. Apply before enter of plea. What is required? o Identify defects and details desired

o o

Rule 117 Motion to quash Why do you file motion to quash the information? o 1. It is defective or o 2. The court has no jurisdiction. Differentiate from provisional dismissal: o In P.D., there is no questioning of the information. In fact, it is valid and charges a proper offense and the court has jurisdiction over the SM and the person. o Provisional dismissal is always with the consent of the accused. What is the effect of a grant of a MTQ? o Dismissal of the case. o Is it always dismissal? No. The court can order amendment. [No period provided.]

Amendment is a remedy, but it has a narrow application. It does not apply to all grounds. Can a case dismissed by a MTQ be re-filed? o As a general rule, yes. o It depends on the ground. o When can it not be re-filed? 1. Prescription 2. Double jeopardy Can the prosecution file a MTQ? o No. The applicable remedy is substitution of information. When a case is dismissed provisionally, what is the effect? o The case is temporarily dismissed. Ex. This case is dismissed for 30 days o It can be revived (dont use re-file because the dismissal was just provisional) o Who will ask for provisional dismissal? 1. The prosecution With consent of accused If there is no consent of accused, is it a provisional dismissal? o No. A dismissal without the consent of the accused would lead to double jeopardy (obtains finality). 2. Or the accused Is the prosecutions consent required? o No. Even without consent, its still a provisional dismissal. As long as it doesnt pass the time leading to permanence. o When can you ask for provisional dismissal? Any time. For a dismissal to take effect in MTQ, do you need to wait for a lapse of time? o There is still a period to seek a remedy after. Ex. You can file an MR. o After this period, it can be re-filed. (Except for the two exceptional grounds.) For a provisional dismissal to be permanent, what is the period required?

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Beyond 6 years 2 years 6 years or less 1 year When will this period begin to run? Upon receipt of notice by the accused (given by the code) But this has been supplemented by Lacson: Period can only start upon receipt of notice by the public prosecutor Rationale: because it is the public prosecutors duty to revive the case What are the grounds for a MTQ? o Problem as to form o 1. Facts stated do not constitute an offense The elements of the offense are not there But is it possible that while not constituting an offense, you can be liable for another offense? Can this be the proper ground of a MTQ? Its possible. This is not a ground for a MTQ. Ex. Charged with qualified theft, but relationship was not alleged. You file a MTQ. The court can order an amendment to show relationship. The court cannot quash because there is an offense alleged in the information. o 2. More than one offense was charged in the information How do you know if there is more than one offense? Ex. murder can you kill a person twice? No. Ex. rape you can rape someone multiple times. For instance X raped Y five times. How many informations should you file? o Five. What if ten checks bounced? o Ten informations, because each is an offense in its own. o 3. Does not conform substantially to prescribed form o 4. Officer who filed the information had no authority to do so. o o o

o o

o o o

There was a case in the Sandiganbayan. There was a motion for reinvestigation and it was granted. The Special Prosecutor amended it and re-filed it. Can he do that? No. He has no authority; it is not within his powers. Ex. a Prosecutor with authority only extending to Bulacan cannot file an information in Makati. If a State prosecutor is appointed as Acting city prosecutor, does he have authority to approve/file the information prepared by the asst. prosecutor? Yes as long as he is properly appointed by the DOJ. Jurisdictional matters 5. Lack of jurisdiction over the person of the accused Accused has not voluntarily surrendered Or Accused not arrested 6. Lack of jurisdiction over the offense charged Exculpatory matters 7. Criminal liability has been extinguished by prescription Recall that there is prescription of crimes and prescription of penalties. To which does this ground apply to? Prescription of crimes. In prescription of penalties, there is already a judgment. 8. Contains averments that if were true, would constitute a legal excuse or justification Ex. Self-defense 9. Double jeopardy What are the requisites? 1. Court of competent jurisdiction 2. Valid information 3. Plea 4. Conviction, acquittal, or dismissal without express consent of the accused What are examples of dismissal without the express consent of the accused? Ex. failure to prosecute

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What about motion to dismiss prompted by the accused on the ground of violation of right to speedy trial? It is tantamount to an acquittal and thus leads to DJ. This is an exception to the general rule What about a demurrer to evidence which is granted by the court? It is also tantamount to an acquittal and thus leads to DJ. Another exception. What about a motion for determination of probable cause filed by the accused and granted by the court? No, this is not an exception. There is no plea yet. There is no dismissal without express consent of the accused. Compare motion to dismiss (civil procedure) from motion to quash (criminal procedure). o Re: court actions o Motion to dismiss: The court can grant, deny, or order an amendment o Motion to quash: The court could only order amendment if its a defect that can be corrected by such amendment. UNLIKE in motion to dismiss, regardless of the ground, the court has a free hand: can grant, deny, or order amendment. Whereas here, the court has to order an amendment before denying/granting, on some grounds. o Re: refiling o Motion to dismiss: In general, it can be re-filed. Except: 1. Prescription 2. Unenforceable under Statute of Frauds 3. Res judicata 4. Extinguish of claim or demand (PWEA) o Motion to quash:

In general, it can be re-filed. Except: 1. Prescription 2. Double jeopardy o Re: objections not raised o Motion to dismiss: In general, grounds not raised are waived. Except for: 1. Lack of jurisdiction over the SM 2. Prescription 3. Litis pendentia 4. Res judicata o Motion to quash: In general, grounds not raised are waived. Except for: 1. Lack of jurisdiction over the offense 2. Prescription 3. Does not constitute an offense 4. Double jeopardy When will double jeopardy not set in? o 1. When there is a supervening event. o 2. Facts constituting graver charge only were discovered after a plea was entered o 3. Plea of guilty to lesser offense was made without consent of prosecutor and offended party Except? For purpose of plea bargaining, the private offended party was notified but did not appear during arraignment And the offense is necessarily included in the offense charged When can there be consent of the accused but double jeopardy can set in? o 1. Speedy trial o 2. Demurrer to evidence

Rule 118 Pre-trial When must pre-trial happen?

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Within 30 days from the court acquiring jurisdiction over the person AND after arraignment N.B. within the same 30 day period as arraignment N.B. but take note of the exception (3:10:10 rule) if the accused is detained Can there be compromise? o Basic rule: you cannot compromise criminal action o But you can compromise the civil aspect of the case But when you compromise the civil liability, it does not lead to the dismissal of the criminal case What do you need? Affidavit of desistance by the offended party. This is as to the civil aspect. The prosecution has to move for the dismissal of the case o If the prosecution moves for dismissal, does double jeopardy set in? Check the requisites. If there is plea, double jeopardy sets in. If there is none, double jeopardy will not. Can the admissions of the accused be used against him in the proceedings? o Yes, if it is in writing and signed by the accused and his counsel. What is the rule for agreements entered into in the pre-trial conference? o Same rule reduced in writing and signed by both accused and counsel. o What are these agreements? 1. Plea bargaining 2. Stipulation of facts 3. Marking of evidence 4. Waiver of objections to admissibility of evidence 5. Modification of order of trial (lawful defense) 6. Matters that promote a fair and expeditious trial of the civil and criminal aspects of the case o What is required for these agreements? Must be approved by the court Absences and appearances:

The rule of absences in pre-trial (in civil case) does not apply in criminal cases. o The pre-trial will be reset. If the witness is absent, the court can rely on compulsory processes If the accused in absent 1. There is forfeiture of bail 2. There will be a warrant of his arrest [Distinguish cancellation from forfeiture of bail]: Cancellation o Voluntary surrender or death. o It is automatically cancelled upon acquittal, conviction, or dismissal of the case against him without express consent of the accused. Forfeiture failure to appear What is the procedure? The court will order the bondsman to produce the accused within 30 days. If he fails to do so, the bail will be forfeited. What is your remedy for forfeited bail? Appeal Is it mandatory? o Yes. There is pre-trial before Clerk of Court Can there be stipulations? o Yes Can there be marking of documents? o Yes

Rule 119 Trial When must trial commence? o Within 30 days from receipt of PTO o What if there is an order for new trial? Within 30 days from notice of that order But if impractical, it can be extended up to 180 days from the notice of the order Period to conclude trial? o 180 days from first day of trial (unless authorized by the SC)

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What is the order of trial? o 1. Prosecution o 2. Defense o [optional:] o 3. Rebuttal o 4. Surrebuttal o 5. Submission of memoranda o Are rebuttal and surrebutal necessary? No. This is upon courts discretion. Likewise, with submission of memoranda. o Can it be reversed? Yes, when there is self defense and other exculpatory defenses Discharge of the accused as state witness requisites? o 1. There is no direct evidence So for this, you have no one who can point to the perpetrator. What is the opposite of direct evidence? Circumstantial evidence o 2. There is absolute necessity for the evidence o 3. Could be corroborated in its material points o 4. Not the most guilty o 5. Not convicted of a crime involving moral turpitude When can an application for discharge be made? o Before the prosecution rests its case o What does the applicant need to do or submit? Submitting sworn affidavit o What happens to the statement? Becomes part of the evidence of prosecution o What happens to the accused? Becomes acquitted o If the application is denied, what happens to the statement? Its inadmissible Compare with requisites for discharge under Witness Protection Program? o The requisites are the same. o But the mode of application is different you file it with the DOJ, not with the court. (Yu v. RTC of Tagaytay)

Does double jeopardy set in, if under WPP? No, because there is no plea. So he can be prosecuted afterwards (!) When do you file a demurrer to evidence? o Civil after plaintiff has completed presentation of evidence o Criminal after the prosecution rests Do you need leave of court? o In criminal: you dont need to, but there are serious consequences if you do not secure leave. If you file with leave of court and its denied, the accused can still present evidence If you file without leave of court and its denied, the accused will not be able to present evidence there will be a judgment o In civil: no need for leave of court o N.B. demurrer in criminal case on the courts own initiative (motu propio) after giving prosecution chance to be heard is allowed When do you file motion for demurrer in criminal case? o 1. Non-extendible period of 5 days from prosecution resting its case o And then? Prosecution can oppose the motion in non-extendible period of 5 days from receipt o And then? If leave is granted, accused has non-extendible period of 10 days from notice to file the demurrer Prosecution can oppose the demurrer in nonextendible period of 10 days from receipt In criminal cases, if the demurrer is denied, can you file a petition for certiorari? o No. You cannot file a petition for certiorari. You have to wait for judgment. Whats the effect of a grant of demurrer in a civil case? o Its a final disposition of the case. o In a criminal case? Its a dismissal. It amounts to an acquittal.

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If the demurrer is granted and the accused is acquitted, can the accused adduce evidence on the civil aspect of the case? Despite the acquittal, the court can still hear the case as to the civil aspect, unless there is a declaration that the fact from which the civil liability would arise does not exist. So if the accused was not able to present evidence in the civil aspect, it is a void judgment. Recall: Exclusions to the 180-day rule for trial to finish from its first day. When can the court grant a continuance? o N.B. correlate with last ground for exclusions o 1. Consider w/n it will lead to a miscarriage of justice So this can include the civil procedure grounds (ex. unavailability of material evidence or sickness/absence of party or counsel) o 2. The issues in the case are so novel, unusual, and complex that it requires more time to prepare NOTE: Check discussion in Rule 115 for Conditional examination of witnesses When can the testimony of a discharged witness be disregarded? o ONLY when he deliberately fails to testify truthfully in court Can there be a reopening of a case? o Yes, anytime before finality of conviction, the court may motu propio or upon motion (with hearing) reopen the hearing to avoid miscarriage of justice o How long before the proceedings terminate? 30 days from granting

Or if the facts from which the civil liability might rise from were not committed Does the prosecution have remedy against an acquittal? o Note than an acquittal is immediately executory. o But if there is GADALEJ (P v. Hernandez) you can file for certiorari Before you challenge an acquittal this way, you have to secure consent of the Solicitor General And this is only for exceptional circumstances How do you promulgate judgment? o The accused should be present during promulgation Except if it is a light offense Or else he forfeits his remedies o There is a period within 15 days from promulgation of judgment within this period he has to explain why he was absent o If he is in jail, to whom is the notice served? The warden o If he is out on bail? The bondsman o If he is at large? Notice sent to last known address Is there promulgation in appellate courts? o Yes. o When duly certified by the division, and then forwarded to the clerk of court, who will give notice of promulgation on paper Can a judgment be modified? o Yes, before it is final and executory

Rule 120 Judgments What should a judgment contain? o 1. Offense you have committed o 2. Penalty to be imposed o 3. Participation, whether principal, accomplice, accessory o 4. Aggravating or mitigating circumstances o 5. If acquitted, whether: Complete non-liability Reasonable doubt

Rule 121-5 Remedies (NT/MR/Appeals) Is there a record of appeal on criminal cases? o No. Is there ordinary appeal (notice of appeal)? o Yes.

MR/MNT When?

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15 days Is Neypes applicable (fresh period rule)? Yes. Grounds for MNT? o 1. Errors of law/irregularities prejudicing substantive rights of accused during trial o 2. Newly discovered evidence Material Could not have been discovered with reasonable diligence Would probably change judgment o How long does the court have to commence a new trial from the order granting an MNT? 30 days from the notice of such order Extendable up to 180 days from notice, if the period is impractical Ground for MR? o 1. Errors of law or fact requiring no further proceedings Can you file MNT in the CA? o Yes o What ground? Newly discovered evidence only o What is the period? From perfection of appeal until the court loses jurisdiction Can you file MR in the CA? o Yes, but just one.

o o

Ordinary appeal Who may appeal in a criminal case? o Any party may appeal, unless it would place the accused in double jeopardy o Parties: 1. Accused A statutory right, and affirmed in the ROC 2. Offended party 3. People of the Philippines When may the private offended party appeal?

Only as regards the civil aspect of the case Ex. Did not have a finding of civil liability, did not order restoration, etc. o This does not place the accused in double jeopardy. When may the people appeal? o See sample question: A person is charged with rape in the information. Counsel for accused filed a motion to quash for lack of J over the offense charged. The motion is granted. What is the effect? Dismissal of the case. o Can the State appeal? Yes. Because double jeopardy has not yet set in. You file the MTQ before arraignment. In appeals in civil cases, when a party appeals, only such assignment of errors that he made in the appeal will be taken up by the court. The appellate court cannot go beyond this assignment of errors. In criminal cases, when the accused appeals from his conviction, he throws open the entire case for review. He will not be limited to the assignment of errors in the appeal brief. o Significance: the penalty imposed, instead of being lowered or cancelled, it can be increased. In the case of several accused, where some appealed and some didnt, what is the rule? o Appeal made by one party does not affect those who did not appeal. o Except if it ends up being beneficial. What happens to the decision? o The decision is stayed until appeal is not yet completed. Criminal: X was charged with acts of lasciviousness (within MTC jurisdiction). MTC renders judgment. Who reviews it? o RTC, through notice of appeal filed with the MTC. (RULE 122) o Compare/contrast with Civil: MTC RTC, through notice of appeal. (RULE 40) Or MTC RTC, through record of appeal (not available in criminal cases) What is the procedure in the RTC for criminal cases, when acting as appellate court? o Parties submit their memoranda (Rule 122, Sec 9) o Compare/contrast with Civil:

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Same. Parties submit memoranda. Criminal: Court of original jurisdiction is the RTC, and he was convicted for homicide. Appeal? o Go to the Court of Appeals, through Notice of appeal filed with the RTC. o Compare/contrast with RTC in civil action: Go to the CA, through Notice of appeal filed with RTC. OR file a record of appeal. So still the same. o What is the procedure followed by the CA in criminal cases? File appellants brief (Rule 124), within 30 days File appellees brief, within 30 days Reply brief, within 20 days o Compare/contrast with civil cases: 45/45/20 days

If it finds for death again, it can render judgment but not enter it. o What happens after? The CA will certify the case to the SC. The penalty is life/RP. Is it covered by automatic review? o No. You need notice of appeal. CA o The Court of Appeals found in favor of life/RP. Can it render and enter a decision? Yes. o How do you appeal this? This is the singular instance where you file a NOTICE OF APPEAL with the Court of Appeals to go up to the SC.

Sandiganbayan What if the penalty is less than death/life/RP, whether original or on appeal? o Rule 45 to SC o [Note that the CA and SB are same level courts] What if the penalty is death? o Automatic review to SC What if the penalty is life/RP? o Notice of appeal to SC (like in the CA)

Petition for review How does it reach the CA on petition for review? o If the original case was filed in the MTC. o MTC RTC CA What about civil cases? o Found in Rule 42. o Still MTC RTC CA Criminal: Review by the Supreme Court, if the penalty is not punished by death, life, or reclusion perpetua: from where should it come from? o From the CA or the SB only o Use Rule 45, whether civil or criminal. Again, the general rule is that you cannot go up to the SC except through petition for review on certiorari. o In civil, from where can you come from? RTC, CA, SB, CTA en banc, etc. RTC, penalty is death, based on the law (although it cannot be implemented). How do you appeal? o There is automatic review to the Court of Appeals, even in the absence of a notice of appeal. o The case is with the CA. What can the CA do?

General provisions Can there be a valid judgment even if the judge who rendered the judgment was not the same one who heard the case? o Yes. Logrida v. P: Rule 122, Sec. 11 provides: even if an accused did not appeal when there are multiple accused, and there is a favorable judgment, it could benefit the non-appealing accused. o However, in this case, the accused invoking this provision actually filed an appeal, but it was dismissed due to a technicality. When is as appeal deemed to be abandoned? o When the accused jumps bail, escapes, or fails to file an appellants brief.

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Counsel-de-officio: o The general rule is the accused is given the choice to retain a counsel de parte (of his choice) o If he cannot afford one, the court appoints a counsel de officio o One can be appointed during arraignment, or for the rest of the trial. o Can a counsel de officio be named in the Court of Appeals? Yes, when the accused signed his own appeal. Also, when he was not assisted by counsel. o Can the SC appoint a counsel de officio for the accused? Yes, the SC can, but this is not provided for in the rules.

Sample scenarios Seduction what court has jurisdiction? o File in MTC (since MTC cut-off is 6 years) o Appeal to RTC which has territorial jurisdiction. Notice of appeal Records of MTC elevated to RTC, no new trial. Parties are required to submit memoranda. Rule 42 o Appeal again to CA Regardless of the question involved, because RTC was exercising appellate jurisdiction o Appeal again to SC Rule 45 only (pure questions of law) Estafa o File in RTC, performing original jurisdiction o Appeal Questions of fact and mixed questions, go to CA Pure questions of law, go to SC o If you go to SC, what mode? Rule 45 o If you go to the CA, what mode? Ordinary appeal, Rule 41 RTC sentences accused to RP or LI. What is the remedy? o Notice of appeal to CA, Rule 41

What issues can you raise? Facts, or Mixed o If your questions are just purely legal, are you prevented from raising it to the SC via Rule 45? No you are not. There is nothing the rules preventing you from doing so. RTC imposes penalty of RP or LI. The CA affirmed. Your MR is denied. What is your remedy? o Go to the SC, under Notice of Appeal o This is the exception o Purpose: so you raise both questions of law and fact Where appealed cases from Sandiganbayan go? o SB (= CA) SC (Rule 45) o SB (reclusion perpetua or LI) SC (notice of appeal) o Note: there can still be certiorari (Rule 65) for instances, such as when the prosecution was deprived its day in court Does the Rule 41 provision which enumerates what cannot be appealed apply suppletorily to criminal appeals? o No. o Resolution on MTQ is thus appealable regardless of the ground availed of (because it is a final order) o If the basis of MTQ is prescription of the offense or double jeopardy if this is granted by the TC, this means that the prosecution cannot simply refile it. There is no problem here, so remedy is appeal. o The only issue is when the MTQ is based on grounds like alleging multiple offenses or lack of J of the court, which can be cured by refiling in a different court the losing party can still challenge it in an appeal! Because as highlighted above, the Rule 41 prohibition does not translate to criminal procedure Practitioner-type question: If as prosecutor, your complaint was dismissed under Rule 117 Sec 3 (5) did not comply with proper form. What is the better remedy to choose: certiorari or appeal (since this is allowed too)? o N.B. If this were a civil case, the obvious remedy is re-file or certiorari under Rule 65, since appeal does not vest.

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In a criminal case, you have to choose appeal because certiorari cannot vest if there is a plain, speedy, available remedy. But sir left this issue hanging. Its not yet clear cut.

Rule 126 Searches and seizures How long is the life of the search warrant? o 10 days from date of issue, and then void What can be the personal property subject to search and seizure? o 1. Subject of offense o 2. Stolen or embezzled, or fruits of the offense o 3. Used or intended to be used as means to commit offense o The search warrant said an undetermined amount of shabu. The original case was for marijuana. Will this be enough for the police officers to conduct a search? Yes, even if the amount was not specified. What is required is that the object of the search be described with particularity. Quantity is not required. o The police officer was armed with a search warrant. But before implement or enforcing it, on plain view, he saw illegal firearms. Can there be a valid search? Yes. Plain view exception applies, even if there is a search warrant. Where could you apply for a search warrant? o 1. You apply to the court, following the rule on territoriality. o 2. For compelling reasons, any court within judicial region where the crime was committed or any court within judicial region where warrant shall be enforced o What can be a compelling reason? Its a question of fact, but an example is when he is a public officer of that locality and there is doubt that a search warrant can be properly applied for. o N.B. But if there is already a criminal action, file it in the court where the action is pending o Is application for a search warrant a criminal action? No. It is a special judicial process. o Can it become one?

No. You need information because the application for a search warrant will not evolve into one. Where do you file for quashal of search warrant? o In the court wherein it was applied for if there is no case yet o If there is a case, in the court where the case is pending Who determines probable cause for search warrants? o The judge. Not the prosecutor. o Wherelse is probable cause required, apart from application for search warrant? 1. Preliminary investigation 2. Rule 113, warrantless arrest (personal knowledge that crime has been committed) 3. Warrant of arrest 4. Search and seizure o What is required for the judge to do? Personal examination and determination by the judge of the complainant/applicant and witnesses. It does not involve mere submission of affidavits. Give an example of a search based on a warrant, where the place is described with particularity. o Ex. if its an apartment, you give the number of the apartment. o What if its a stretch of apartments, and what was indicated is apartment B, but what was searched was apartment C. Was there a valid search? No. o But was the search warrant valid? Yes. The search warrant can be valid, but the implementation was invalid. o There were illegal items seized from apartment C. How can you prevent these goods from being used in a criminal trial? Motion to suppress. o Differentiate motion to quash from motion to suppress. Motion to quash is before implementation of the search warrant. Motion to suppress is after implementation and before presentation in court. o What if there is no way to describe with particularity the place, esp. when it is a province?

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Its possible to say kilometer 30. But this cant apply for cities or municipalities. To whom must a search warrant be served? o The lawful occupant. o In the absence of the lawful occupant? To a relative. o In the absence of the occupant or relative? To two witnesses of sufficient age and discretion residing in that locality. When the items are seized, to whom must the receipt be given? o To the lawful occupant or relative o If there are two witnesses, the receipt will be left in the premises where they were seized When can it be conducted? o The warrant must provide that search is in day time o N.B. Unless affidavit asserts the property is on the person or place ordered to be searched, in which case, it is day or night What is the duty of the officer after the search? o He should present an inventory of the items. Failure to submit inventory makes him liable for contempt. Dangerous Drugs Law: what are the special rules? o The inventory must be made at the scene of the crime. (For normal crimes, it can be done in court or police station or wherever.) o The person must make a physical science report to track the chain of custody. What is the rule as to search and arrest? o The general rule is that the arrest must come before the search and seizure. o Or, the search and seizure must be contemporaneous to arrest. If you apply for a search warrant in QC, can it be applied outside of the territorial jurisdiction? o As a general rule, no. o But allowed as an exception for violations of: 1. DDL, 2. IP code, 3. illegal possession of firearms, 4. illegal gambling,

5. Heinous crimes, 6. AML, 7. Violation of tariff and customs code. o You have to apply before an executive judge before the City of Manila or Quezon City. This will be effective anywhere in the Philippines. Re: Seizure of fake goods (ex. fake Adidas) What is the role of the private party? o The private party can submit documents and pleadings to support the application of the NBI. The place of manufacture of the fake goods is in Cavite, and place of sale is in San Juan. Where do you apply? o Either place.

Rule 127 Provisional remedies What is the general rule? o Provisional remedies in civil procedure are applicable to criminal procedure. What about replevin? o Does not apply because it can only be filed before an answer, but in a criminal case, there is no answer. What are the grounds for attachment in criminal cases? o 1. The accused is about to abscond or depart with intent to defraud o 2. Claim for money or property that has been embezzled with abuse of trust (estafa) o 3. Accused resides outside the Philippines o 4. Accused has concealed/removed/disposed his property Period Remarks

Situation PRELIMINARY INVESTIGATION Filing of complaint Initial action prosecutor (no PI) Initial action prosecutor (with PI) of of

Within 10 days from filing of complaint Within 10 days from filing of complaint

*start of criminal procedure* Either dismissing or prosper Dismiss case or issue subpoena to respondent

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Respondent submits counter-affidavit

Within 10 days from receipt of subpoena

Clarificatory hearing

Termination clarificatory hearing Resolution

of

Forward record of case to provincial or city prosecutor or OMB/deputy Action by the provincial or city prosecutor or OMB/deputy Judge determines probable cause Prosecutor to present additional evidence upon judicial order (Post inquest) Filing of complaint or information in court without preliminary investigation accused may ask for preliminary investigation

Within 10 days from submission of counteraffidavits Within 5 days from first hearing Within 10 days after investigation Within 5 days from resolution

If respondent cannot be subpoenaed or did not submit counter-affidavit within 10 days, prosecutor resolves based on complaint alone (Optional)

Suspension of arraignment due to petition for review filed with Sec. of DOJ Filing of motion to quash TRIAL Time for accused to prepare for trial Commencement of trial

complaint; Arraigned within 10 days from date of raffle; Pre-trial within 10 days from arraignment Maximum 60 days from filing of petition

Any time before he is arraigned

Within 10 days from receipt Within 10 days from filing of information or complaint Within 5 days from notice Within 5 days from the time he learns of its filing

Can: a) dismiss or b) file information If judge doubts existence of probable cause, he may opt to: The 10 days to determine extends to 30 days

Commencement of trial after MNT granted Entire trial period Exclusion from 180 day limit of delay due to pre-trial proceedings or period in which accused is actually under advisement Examination of witness for defense (aka modes of discovery for criminal action) Leave of court to file demurrer to evidence Opposition by prosecution to the motion After being granted leave, filing of demurrer to evidence Reopening of trial to avoid miscarriage of justice

At least 15 days from plea of not guilty Within 30 days from receipt of pre-trial order Within 30 days from notice of the order Maximum 180 days from first day of trial Maximum 30 days

Allow extension up to 180 days, by the court

ARRAIGNMENT and PRE-TRIAL

Arraignment not under detention Arraignment under detention of person preventive of person preventive Within 30 days from date court acquires jurisdiction over him Raffled within 3 days from filing of information or This same period must cover pre-trial Remember the 3:10:10 rule

Order by court (upon application of accused) issued at least 3 days before the examination Within 5 days after prosecution rests its case Within 5 days from receipt of the motion Within 10 days from notice Anytime before finality of conviction

Before a judge, member of bar in good standing, or inferior court Non-extendible

Non-extendible

Non-extendible

Terminate proceedings within 30 days from order granting it

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JUDGMENT, REMEDIES Surrender of convicted accused, after initially failing to appear in promulgation of judgment Availing of postjudgment remedies of above-stated person

Within 15 days from promulgation of judgment Surrender and file motion to avail of postjudgment remedies (because these will not avail anymore)

o 3. Testimonial Whether its object, documentary or testimonial, what is required? o They have to pass the test of admissibility (Rule 128, Sec. 3) Circumstantial: proof of facts, when taken collectively, existence of particular fact may be inferred as a necessary or probable consequence. Secondary: inferior to primary evidence and shows on its face that better evidence exists. Negative: witness states that he did not see or know the occurrence of a fact; only admissible to contradict positive evidence. Cumulative: Same kind and character as that already given, proving same point Conclusive: incontrovertible

Direct: proves fact in dispute without need for inference or presumption

Within 15 days from notice, after proving justifiable reasons for non-appearance *follow usual periods in appeal Within 30 days of receipt of notice from clerk of transmittal of evidence

Primary: best evidence; affords greatest certainty of fact Positive: witness affirms that a fact did or did not occur. Positive trumps negative, when witnesses equally credible Corroborative: Different kind and character proving the same point Prima facie: that which suffices to prove a fact, until contradicted by other evidence

Appeal from judgment Submission appellants brief of

Submission appellees brief

of

PART III: EVIDENCE

General provisions When did the Rules on Evidence take effect? o July 1, 1989 What is evidence? o Evidence is the means, sanctioned by the Rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. Not all concepts of evidence will require presentation of evidence. What are these exceptions? o 1. Judicial notice o 2. Judicial admissions When youre required to present evidence, there are three kinds: o 1. Object o 2. Documentary

When is evidence admissible? o When it is relevant and competent When is it relevant? o 1. When it is material When is it material? Has direct relation to the fact in issue o 2. When it has probative value When does it have probative value? Can induce belief as to its existence or nonexistence When is it competent? o Not excluded by law o What are not competent give examples: Those excluded by the Best Evidence Rule Those seized without valid warrant and without a valid exception Those violating the Parol Evidence Rule (contents in the written document are presumed to be the

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repository of all the matters agreed upon by the parties) Differentiate direct from circumstantial evidence. o Direct: prove a matter without need for inference or presumption o Circumstantial: facts, from which the existence of another fact may be inferred as a necessary or probable consequence o When is testimonial evidence direct evidence? When the witness was able to perceive the matter being testified upon o Can circumstantial evidence be the basis for conviction? Yes. As long as there is more than one circumstance and each is proven. o Can circumstantial evidence be basis for identification? Yes. What are the characteristics of admissibility? o 1. Multiple admissibility evidence may be admissible for multiple purposes o 2. Limited admissibility it may be admissible for one purpose but not another, or against one party, but not another o 3. Conditional admissibility if relevancy of a fact is dependent on evidence not yet submitted, the court may accept the evidence conditioned on: A. statement of supposed connecting facts B. promise to give it in evidence o 4. Curative admissibility where inadmissible evidence is offered and not objected to, if the latter party is presenting similarly inadmissible evidence to counteract the first inadmissible evidence, then it is likewise admissible What is the difference in relevance of direct and circumstantial evidence? o 1. Direct evidence is always relevant o 2. Circumstantial evidence may or may not be relevant The more steps there are in the chain of inference, the less probative value it has What is positive evidence? o Evidence that proves something happened. o Ex. I saw him stab person X or I did not see him stab person X

What is negative evidence? o Evidence where the witness was there, but he did not perceive anything. o Ex. I was there in the scene, but I did not noti ce anything happen. What is primary evidence? o Best available evidence to establish the fact in issue o What is an example of primary evidence? Best Evidence Rule. The secondary evidence here is photocopy, recital of the contents, or testimony as to its contents. What is weightier, physical evidence or testimonial evidence? o Physical evidence. Note: exceptions to the hearsay rule are not absolute. They can be contested or impugned. o How do you destroy the exception? Destroy the requisites. Ex. was it audible? was he aware that he was going to die? Is there primary evidence in object evidence? o Yes. If you want to present a car, present the actual thing itself. o What is the secondary evidence? A car of the same model, same type, etc. which will aid the court in understanding the object involved. Is there primary evidence in testimonial evidence? o Yes. A person who had personal knowledge. o What is the secondary evidence? Hearsay. N.B. but note that the codal does not expressly tag hearsay as secondary evidence although it is. When asked in the bar what secondary evidence is, give the answer for documentary evidence to be sure. What is prima facie evidence? o That which suffices to prove a fact, until contradicted by other evidence o What is the difference between prima facie evidence and disputable presumption?

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1. Prima facie evidence arises from a fact that would sufficiently create a reasonable belief that an act alleged has arisen 2. Disputable presumption arises from Rule 131 o N.B. they are the same in such that these can be controverted What is a conclusive presumption? o It cannot be controverted o But can you attack a fact that leads to a conclusive presumption? Yes. o Give an example of a conclusive presumption. Tenant cannot deny the title of his landlord Distinguish between preponderance of evidence and proof BRD: o Preponderance Court determines superior weight of evidence; for civil cases o Proof BRD Moral certainty, conviction will arise from an unprejudiced mind; for criminal cases Are the rules of evidence uniformly applied in all our courts? o Yes, in general. o Trade disputes in DTI? No. o NLRC exercising QJ functions? No. You dont need best evidence available here (can use photocopies, thats fine) o What does except if otherwise provided by law? If otherwise provided, then the uniform application will not extend to that. o Examples: 1. Agrarian cases 2. Rule 130, sec. 26/27: compromise rules are not the same in civil and criminal cases 3. Character evidence: there is also difference in civil and criminal cases 4. Two witness rule in treason What about collateral facts? o General rule, not relevant o EXCEPT, when the collateral matters establish probability or improbability of the fact in issue o Give an example.

In rape, the accused can point to the character of the supposed victim to prove that there is probability that the intercourse was consensual. N.B. You can only use character evidence if there is a character trait involved in the offense charged. What is factum probandum and factum probans? o Factum probandum is what must be proved o Factum probans is what is used to prove it

Judicial notice and judicial admissions When is it mandatory? o 1. States existence, territorial extent, political history, forms of government, symbols of nationality o 2. Law of nations, admiralty, maritime courts of the world, and their seals o 3. Political constitution and history of the Philippines, official acts of legislative, executive, judicial departments of Philippines o 4. Laws of nature, measure of time, geographical divisions Why are these mandatory? o Because they have already been established. They cannot be disputed anymore. No need to introduce evidence anymore. Can the court take judicial notice of rentals? o No. The court cannot take judicial notice of factual matters. Is the court bound to take judicial notice of municipal orders? o MTC judge required, if ordinance came from municipality or city where they sit o RTC judge No. Except when a) required by statute; b) inferior court took judicial notice of an ordinance in the case being appealed before RTC o What about memorandum circulars issued by departments? No. The court is not expected to take notice of these less important matters. o What about customs and foreign laws? No, these must be proved in court Are courts bound to take judicial notice of cases pending in the same court or decided in that court?

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No. The courts will not and cannot, even if it came from the same court. o What are the requisites for the exceptional circumstance when a marked but unoffered piece of evidence referencing a prior decided case fell under judicial notice (note, if it were offered, no need to resort to judicial notice)? (Basis: Tabuena v. CA) 1. Without objection by the other party 2. With knowledge of the other party 3. At the request or with consent of the parties 4. The case is clearly referred to 5. It is actually withdrawn from the archives 6. It is admitted as part of the record of the case What is covered by discretionary judicial notice? o 1. Matters of public knowledge Example: Death of Corazon Aquino o 2. Capable of unquestionable demonstration What is this? If repeated in a regular manner, it will establish that fact. Examples: Mathematical computation Statistics Effects of poison, etc. Do surveys fall under this? No, because methods change, samples change, etc. o 3. Ought to be known to judges due to their judicial function Can a judge take judicial notice of proceedings pending in other courts? No. Hes not bound to know all the cases filed. What about pending cases in his own sala? No. Unless he takes the consent of the parties. When can there be taking of judicial notice? o 1. During trial on any matter and with hearing o 2. After trial and before judgment same, but only on matters decisive of a material issue in a case

3. After appeal same, but only on matters decisive of a material issue in a case Can every matter be subject of judicial notice? o Yes, during the hearing. o You are not limited to the enumerations provided in law. o What is the need for a hearing? Check propriety of taking judicial notice There was an insurance recovery claim, dated September 2009. It was not alleged in the claim that the loss happened on the day Ondoy struck Manila. Can the other party request the court to take judicial notice (or can the court motu propio take judicial notice) of this fact? o Yes. Differentiate between legislative facts and adjudicative facts: o Legislative facts: general facts of political, social, or economic nature o Adjudicative facts: those applicable to the facts in the present case Judicial admissions: o Statement made as to a fact in issue made in a pleading or in utterances in a trial o Do you need proof as to judicial admissions? No. When is there a judicial admission? o Made in the same pending proceedings o What if made in prior proceedings? These already become extrajudicial admissions, which are by nature disputable What are covered? o 1. Statements in pleadings (ex. complaint or answer) o 2. Statements made during testimonial presentation o 3. Depositions or other documents o 4. Pre-trial o 5. Documents submitted in court Can they be withdrawn? Yes. When? 1. There was no intent to make such an admission 2. Or there was palpable mistake o

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What is the nature of admissions made in amended pleadings? o They are mere extra-judicial admissions. Thus, they have to be offered in evidence first.

Rule 130 N.B. The rules on admissibility are applicable to object, documentary, and testimonial evidence alike.

Object evidence What is object evidence? o Those addressed to the senses of the court o An object is presented so that the court can perceive it. What is the difference between object and testimonial evidence? o Object addressed to courts senses and courts can actually observe it What if it is immobilized ex. real property or personal properties attached? Ocular inspection o Testimonial recounting, second hand Differentiate real and demonstrative evidence: o Real tangible object that played an actual role in the issue in trial o Demonstrative evidence in the form of a representation of an object When is object evidence admissible? o 1. Object is relevant o 2. Object is authenticated What is authentication? That it actually is what you claim it to be Does authentication apply to demonstrative evidence? No. Because it does not purport to be the actual thing. What is chain of custody? o Before an object can be received in evidence, one must: A) present all the persons who handled the object and show what

they did to it; B) and that during the time they had it in their possession, no other person had access to that thing. o The purpose is to show that evidence was not tampered with. Does non-production of object evidence render testimonial evidence re: the object inadmissible? o No. This just goes into weight. Are experiments admissible? o Yes. o When is it not? 1. Too complicated to afford any fair inference, 2. Cannot be performed in manner to fairly illustrate the fact 3. More likely to confuse than shed light. What is a paraffin test? o Test for gunshot residue o Are the results conclusive? No. Its not 100% reliable. Is a lie detector test 100% reliable? o No. You can cheat it. What is demonstrative evidence? o Evidence that adds to or explains. o Maps, charts, graphs, etc. o Is it the same as demonstration? No. Demonstration is when you ask for a reenactment or display of how an act was done or re: facts.

Documentary evidence What is documentary evidence? o Writings on any material containing, letters, words, numbers, figures, symbols, or other modes of written expression AND it is offered as proof of its contents o If Blitz had a tattoo saying I love Jojo is this documentary evidence? Yes. o If Blitz wrote on a shirt, saying Good luck! is this documentary evidence? Yes.

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Why are these documentary evidence? It can be in any material, as long as it is a writing or inscription. What about text mesage? Yes. It is ephemeral evidence o When is a piece of writing NOT considered documentary evidence? When you not focused on establishing its contents For instance, you are establishing its existence or its condition, and not its contents What is required for photographic evidence? o It must be relevant and verified o Who must verify it? Some qualified witness In general, must be the photographer, who establishes the production thereof and the circumstances under which it was produced But other witnesses can also establish its exactness and accuracy (for instance, someone who was there too) o What must be proved? That it is an accurate representation of what happened. As to production and circumstances under which they were produced. Prove who operated the camera, the ability of the camera to capture the scene, etc. o Prove all of this first before going into the contents of the photograph. What about videos? o Similarly, lay down the basis, before presenting the contents What is the Best Evidence Rule? o When the subject of inquiry is the contents of a document, no evidence is admissible other than the original document itself o What if all you want to establish is the existence of a document, do you need to present the original? No. Because its not the contents of the document that are in issue. You can present a copy.

N.B. However in practice, try to always present the original. What is the original? 1. The one the contents of which are the subject of inquiry Is the copy made an original just because the contents thereof are the subject of inquiry? o No. You still have to go to the original. Do you need to authenticate an original document even if it appears to be an original? o Yes, even if it appears to be an original. 2. Document is in two or more copies executed at or about the same time with identical contents Usual examples: o Carbon copies o Computers that shoot straight through to the Xerox machine, and then sign all o Or printing 5 copies of the same document, and then sign all What if I print and sign one, then make my secretary produce four copies? o The four copies are not originals I executed a document by 8 counterparts (ex. bills in set), signed four here in Manila on Feb. 28 and shipped four to HK, which were signed on Mar. 1. Are they all original, even if executed in different dates? o Yes, they can be regarded as originals. o N.B. You have to stipulate in the contract (execution by counterparts) that even if not

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executed on or about the same time, they are all originals. 3. Entry is repeated in the regular course of business, one copied from another at or near the time of the transaction N.B. this refers to entry not execution, but you do not sign the books o Does execution in number 2 include formalities like notarization and affixing signature? It depends on what form is required from the contract. What are the exceptions to the Best Evidence Rule? o 1. The original has been lost, destroyed, or cannot be produced in court Not through the fault or bad faith of the offeror Must there be exercise of diligence? Yes, the offeror must attempt to procure the original In cases of loss or destruction, can you present secondary evidence? Yes. You need to lay the basis first. What do you need to do? o 1. Prove that the document exists and it was duly executed o 2. Prove cause of unavailability The actual presentation of secondary evidence will only come after laying the basis. What are the types of secondary evidence that you can present? 1. Copy of the document 2. Recital of its contents in an authentic document o Ex. Secretarys certificate, in case of loss of the minutes o Ex. There is a mother contract, and there is a Memorandum of Agreement containing the basic terms o Ex. A demand letter

Must it be a verbatim copy or is paraphrasing fine? Verbatim copy 3. Testimony of a witness Must it be in this order? Yes. Follow this order. 2. Original is in the adverse partys custody or control What are the requisites? 1. Document exists 2. There is reasonable notice to produce it given to the other party 3. There is failure to produce Does this lead to presentation of secondary evidence? Yes 3. Original constitutes voluminous documents Requisites? 1. Prove voluminous nature of the documents, which cannot be examined in court without great loss of time 2. Provide access to the other party to the original documents What must be proved by these documents? The fact sought to be established must be the general result of the whole What if the voluminous documents are financial documents for the past 20 years, and the fact sought to proved is the profit/gain for this period? You can present a summary because you are proving the general result of a whole. What do you need to present? You just need to present a summary of the documents When do you need to present the original? When the contents thereof are the subject of the inquiry no matter how voluminous they are.

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4. Original which is in the custody of a public officer or recorded in a public office Can you present the original? No, because its in the custody of that officer or office. What do you present? A certified true copy given by the public officer in custody thereof. Give an example. NSO Birth Certificate. Just the Xerox copy of buy-bust money is presented in court. Admissible? o Yes, because you are just proving the money exists, and not the contents of the money. o Test: What is being proved? That the money exists. Not the content of the money as a document. If you want to prove payment, can you just present the witness who was there at the time payment was made, and not the receipt? o Yes. The BER does not apply because what is being proved is the fact of payment, even when there is a receipt. o Test: What is being proved? That there was payment. Not the content of the specific receipt. How does the BER apply to Electronic evidence? o An electronic document is regarded as the equivalent of the original under the BER if: 1. It is a printout or output readable by sight or other means 2. It is shown to reflect the data accurately What is the rule on electronic documents? o In general, they are the functional equivalent of original documents When is a photocopy inadmissible under the Rules on Electronic Evidence? o 1. There is genuine dispute as to the authenticity of the original o 2. Unfair or inequitable under the circumstances to admit it

When a document is altered or amended by the parties, what is the original? o The amended or altered document X was ejected from his seat in ABC airline. Protesting, he told the purser about the incident. The purser recorded in his notebook that X was ejected from his seat. Does BER prohibit testimony re: the pursers act because the notebook was not presented? o No. The fact at issue is the ouster, not the contents of the notebook. X was being investigated for alleged perjury in a senatorial investigation for malversation charges. The chief counsel in the investigation testified as Xs statements in the investigation. X objected, claiming the transcript is the best evidence and the chief counsels investigation is barred by BER. Correct? o No. The issue here is not the contents of the transcript but what X said in the investigation. The issue is not re: contents of a document. X claimed that a movie infringed on his copyright over original designs for a vehicle. X was unable to present his original designs, and instead presented a reconstruction made after the film was released. Barred by BER? o Yes. The fact at issue is the content of the drawings, so the original must have been presented. X could not properly prove in this case, moreover, that the original drawings were lost without his fault. What is the Parole Evidence Rule? o When the contents of a document are reduced to writing, it is considered as containing all the terms agreed upon as between the parties and their successors in interest. o No other evidence of such terms can be presented. What are the exceptions? o 1. Intrinsic ambiguity, mistake, or imperfection in the written agreement Must it be ambiguous on its face? No. The ambiguity must be intrinsic. Give an example. In a will, the testator said I give half my property to my son Buboy. When the will

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was being probated, it turns out there were two sons with the nickname Buboy. What mistake is contemplated? Mistake of fact, and the mistake was mutual What are the requisites? o 1. Mistake is of fact o 2. Mistake is mutual o 3. Mistake must be alleged and proved by clear and convincing evidence What do you do with the contract? o Reform. o When do you not reform? When there was no meeting of the minds. Example, X thought it was the property in Batangas, Y thought it was the property in Cavite. Give an example. o Contract of sale of property. X thought it was Batangas, Y thought it was Batangas. But it was actually in Cavite. Give an example of imperfection in the written agreement? The provision says that the offended party must pay damages, when it fact, the offender must pay. Another: X and Y entered into a contract of sale of property, over a Batangas property. But the technical specifications provided were those of the Cavite property. 2. The failure of the written agreement to express the true intent and agreement of the parties Give an example. X approached Y, asking for money for tuition fee of his son. X said he intended to mortgage his property. Y asked him to sign

a document, but that contract provided for an absolute sale o 3. Validity of the written agreement is at issue Can a contract void on its face be made valid by presentation of extraneous evidence? No. This provision does not contemplate contracts that are by nature void, to make them legal. What situations are covered under this? 1. No contract ever existed 2. Minds of the parties never met on the terms of the contract 3. No consideration upon which an agreement was formed o 4. Existence of other terms agreed to by the parties/their successors-in-interest after execution of the written agreement Give an example. There is an original contract and it was amended from a 20-year agreement to a 10year agreement What is the rule? 1. The separate oral agreement must be A) collateral and B) it must relate to a subject distinct from that to which the contract applies 2. Or if there is a new contract What if the document expressly states that all the rights and obligations of the parties are written therein? Even when there are collateral agreements, they cannot be presented What is required? o The party questioning it must put it in issue in his pleadings What if a party fails to object, invoking the PER? o It will be deemed a waiver. If the party presenting parol evidence is not a party to the contract, will the PER apply? o No. The PER only binds the parties to the contract.

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What if there is a suspensive condition in the contract? o When the operation of a contract is made to depend on the occurrence of the event as a condition precedent, it may be proved by parol evidence. o This is not varying the terms of the agreement, because there is legally no contract in existence. To what kind of documentary evidence does PER apply? o Written agreement. A receipt is not a written agreement.

Rules on Electronic Evidence To what cases does REE apply? o 1. Civil actions and proceedings o 2. Quasi-judicial and administrative cases o N.B. NOT criminal What is the functional equivalence rule? o When a rule of evidence refers to a document, it shall be deemed to include electronic evidence When is it admissible? o If it complies with rules of admissibility in the ROC and authenticated through methods in the REE When is an electronic document the equivalent of an original under the Best Evidence Rule? o 1. If it is a printout or output readable by sight or other means AND o 2. It is shown to reflect the data accurately When are copies treated as equivalents of originals? o 1. Document is in 2 or more copies executed at or about the same time with identical contents OR o 2. Counterpart produced from same impression or matrix as the original, or through mechanical/electronic re-recording, or chemical reproduction o When are the copies not admissible to the same extent as an original? 1. There is genuine question as to authenticity of the original OR 2. It is unjust or inequitable to admit a copy in lieu of the original

What are the means by which an electronic document authenticated? o 1. Evidence that it had been digitally signed by the person purported to have signed it o 2. Evidence that other appropriate security procedures or devices as may be authorized by the SC/law were applied to the document o 3. Other evidence showing integrity/reliability to the judges satisfaction What is the equivalent of a notarized document under the ROC? o Documents that are electronically notarized What is an electronic signature? o Distinctive mark, characteristic, or sound in electronic form representing the identity of a person and attached to an electronic document with intent of authenticating, signing, or approving it N.B. electronic signatures include digital signatures o How is an electronic signature authenticated? 1. Evidence that a method or process was utilized to establish a digital signature and verify the same 2. Other means provided by law 3. Other means satisfactory to the judge o What are the disputable presumptions relating to the electronic signature? 1. It is that of the person to whom it correlates 2.it was affixed by that person with intent to authenticate or approve the electronic document, or indicate consent 3. Methods or processes utilized to affix or verify the electronic signature operated without error or fault What is a digital signature? o Electronic signature consisting of a transformation of an electronic document using asymmetric or public cryptosystem such that a person having the initial untransformed electronic document and the signers public key can determine: 1. whether the transformation was created using the private key (corresponding to the public key) and 2. whether the electronic document has been altered

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What are the disputable presumptions re: a digital signature? 1. Information in the certificate is correct 2. Digital signature was created during operation period of a certificate 3. Message associated with a digital signature has not been altered from the time it was signed 4. Certificate had been issued by the certification authority What is the additional exception to the hearsay rule added by the REE? o Business records are an exception to the hearsay rule. o These are data made by electronic, optical, or similar means at or near the time of transmission of information, kept in regular course of business, and it was regular practice to get such data. o Who testifies as to these circumstances? By the custodian of the information or other qualified witness o How is the presumption overcome? Evidence of untrustworthiness of the source of information or the method for preparation, transmission, or storage of data See discussion on audio, photographic, video, and ephemeral evidence

Testimonial evidence Who can become witnesses? o Those who can perceive, and in perceiving, can make their perceptions known to others o Two steps: 1. Perceiving 2. Making known this perception to others How can you make your perception known to another? o You must be able to communicate it o Can a deaf-mute testify? A blind person? Yes, as long as they can communicate. Who are disqualified?

1. Those whose mental condition, at the time of presentation, is such that they cannot intelligently make known their perception to others X perceived. Then X became insane. Then X had a lucid interval during presentation of witness. Can X testify? Yes. The requirement is during his/her presentation. What is the presumption? That a witness is of sound mind. What is the exception? o He was publicly known as insane or committed in a mental institution. When must objections to competency of witnesses be made? 1. If incapacity is known before trial, before he takes the witness stand 2. If it becomes apparent during trial, as soon as incompetency becomes apparent 2. Children whose mental maturity makes them incapable of perceiving the facts and relating them truthfully What is the presumption? Every child is presumed qualified to be a witness. Under the Child Witness Rule (CWR), who determines the competency of the child to testify? The judge, who conducts a competency examination ONLY when there is challenge of a childs competency Parties can only submit questions, but the judge has discretion When is there a competency examination? Upon motion of a party or there is substantial doubt regarding the childs ability as witness Who are present in the competency examination? o Judge and court personnel, counsels, guardian ad litem,

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support persons for child, defendant (unless court deems it determinable even without the defendant present) Is competency dictated by the age of the child? No. Mental maturity dictates, even prior to the Child Witness Rule. Who is a child witness under the CWR? Accused Victim Witness To what type of cases does it apply to? Criminal and non-criminal proceedings What is a comfort object/person? One that puts the child at ease, like a doll or a pillow Can you ask leading questions to a child? YES. What is the special requirement? o Give notice to the other party o And the judge must approve it first Can you use live-link TV? Yes, so the child will not be able to see the accused. Ex. The child is in another room from the judge/accused, etc. When can there be a videotaped deposition of the child? 1. Upon application of prosecutor, counsel, or guardian ad litem 2. If the court finds that the child will not be able to testify in open court at trial When is it admissible in lieu of live testimony? o 1. As said, if the child for justifiable reason cannot testify in open court o 2. Usual exceptions in Rule 23 Who is a facilitator?

Appointed by the court to ask the questions to the child as to not pressure/harass the child How are the documents in these proceedings treated? Considered confidential, not open to the public What is the sexual abuse shield rule? The following evidence are inadmissible in child sexual abuse cases: o 1. Evidence offered to prove that the alleged victim engaged in other sexual behavior o 2. Evidence offered to prove the sexual predisposition of the alleged victim What is the exception? o Other sexual conduct of the child to prove that another person, and not the accused, was the source of the semen, injury, or other physical evidence o N.B. before offering this kind of evidence, there must be a written motion at least 15 days before trial. This motion is served on all parties and the guardian ad litem at least 3 days before hearing. N.N.B. this is different from the usual 10/3 rule. What is a protective order? One that states that any videotape or audiotape of a child part of the court record may only be viewed by the parties, counsel, expert witness, or guardian ad litem. No such party may view it without written affirmation that he has read the P.O. and that in case of violation, he is subject to contempt.

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Within 30 days from receipt, it must be returned to the clerk of court, unless extended. What are the other protective orders? 1. Publication of childs identity is contemptuous 2. Child can refuse to testify on personal identifying information that can endanger his physical safety or his familys o Except if the court requires it 3. Destruction of videotapes and audiotapes after 5 years from entry of judgment 4. All records of a youthful offender charged, after the charges are dropped, are considered confidential information 3. DQ by marriage (sec. 22) What is prohibited here? What does it cover? Any testimony, for or against the spouse, during marriage The other spouse must be a party What matters are covered? All matters Even confidential matters? o Yes. o After dissolution of the marriage, it can fall under sec. 24 (privileged communication) What are exempted? 1. Civil case between the parties o Does this extend to ascendants and descendants? No. 2. Criminal case of one spouse against the other o Does this extend to ascendants and descendants? Yes.

3. When the marriage is beyond repair, and there is no more marital harmony to preserve Does it survive even after termination of the marriage? No. The DQ only lasts during marriage. Are these DQs waivable? Yes, by the affected spouse What if both spouses are co-defendants to the case? As an exception, prosecution can call one spouse as a hostile witness but his/her testimony will only bind him or herself, and not the other spouse who was not called. When does this rule not apply? o When there is charge of collusive fraud between the parties because inevitably, evidence against the hostile witness-spouse will be used against the other spouse 4. Dead mans statute What is the DMS? Party/assignors of parties/beneficiaries cannot testify as to matters of fact occurring before the death or insanity of the other party What must be the nature of the action? Claim against the estate of the deceased person or a person of unsound mind What about documentary evidence that will prove the claim? Not covered by DMS. This prohibition only extends to oral testimony. What is the rationale for this? To avoid self-interested perjury If death has sealed the lips of one party, then it must also seal the lips of the other Does DMS apply if the heirs are sued? If in their representative capacity, then it applies

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If in their personal capacity, it does not If a corporation is a party suing against the estate of the deceased, can the officers testify as to matters of fact occurring before the death of the person? Yes, because they are mere employees of the party, and not parties or assignors, or beneficiaries What if the representative of the deceased was the one who brought suit? DMS does not apply because this case is a suit by the estate and not against it Are negative facts barred by DMS? No, because negative facts are those not occurring before the death of the decedent Can DMS be waived? Yes. o 5. Privileged communication: See below A. Marital privilege o What are the requisites for marital privilege? 1. Spouses legally married 2. Communication is confidential and was made during marriage o What is the duration of the privilege? During or even after the marriage So it applies even after death or divorce o What about dying declarations? They are not covered, because they were communicated with intent to be disclosed o If a third party chanced upon the conversation, is it covered by the privilege? Classic rule: no, the privilege is lost Modern rule: if the parties took proper precautions but a third person still eavesdropped, the privilege is NOT lost When else is the privilege NOT lost? 1. The spouse him or herself colluded with the third party

2. The spouse deliberately let the information leak out o If a child of sufficient age was present during communication, is the communication privileged between H and W? No. The child is a strange to the marriage. o Distinguish from marital disqualification: DQ: covers adverse testimony; Privilege covers privileged communication DQ: only during marriage; Privilege during or after marriage DQ: one of the spouses is a party to the case; Privilege even if neither spouse is a party DQ: enjoyed by the affected spouse; Privilege either spouse has it B. Attorney-client o What does it cover? Any advice or communication in the course of or in view to professional employment o Differentiate in the course of and in view to? In the course of already retained In view to preparatory o What is covered? Communication by lawyer to client, and client to lawyer It does not suppress underlying facts to the communication o X asked advice from Atty. Y, asking what the requirements are to form a corporation. Is this covered by the privilege? No. o X said that he had problems with his corporation, giving particular details, names of incorporators, reasons, details, and what are the requirements. Is this covered? Yes, even if the lawyer are not eventually retained. o Does it recognize agency and what does it imply? Yes. The privilege extends to secretary, clerk, or stenographer. That the information falls into their hands does not affect the privileged nature of the information.

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o o o

Does attorney-client extend to third parties? Yes, it can extend to the secretary, stenographer, or clerk. BUT not other third parties, where the privilege is lost upon having the information fall into their hands. Can it be waived? Yes. Note: if the relationship of the lawyer with the person is a business relationship, you cannot invoke the privilege. X communicates confidential information to Y, believing the latter to be a licensed lawyer when he in fact is not. It is covered by the privilege? Yes, as long as the belief is reasonable Does the privilege cover pre-existing documents not prepared by the client turned over to the lawyer? No, because they already were not privileged in the hands of the client. Turning them over to the lawyer does not clothe these documents with privilege. What if the documents are prepared by the client and then turned over to the lawyer? Covered by the privilege. The client showed to the lawyer the place where he buried one of his victims. The lawyer checked the body and saw it, but did not touch it or report it to the authorities. The lawyer refused to disclose where the body is. Is this covered? Yes. Covered. X disclosed to his lawyer that he plans to commit a crime. Is this covered by the privilege? No. The privilege does not cover communication as to a future crime. It only attaches to past crime. Does the privilege cover identity of the client? No, its not privileged communication. What are the exceptions? 1. Disclosure of identity would be tantamount to implicating the client 2. Disclosure exposes him to civil liability 3. Identity of the client is the last remaining link in the chain of testimony

What is the work product doctrine? One party cannot inquire into the memoranda and files of the opposing client unless there is necessity or justification. C. Doctor-patient o What are the requisites? 1. Claimed in a civil case 2. Person is authorized to practice medicine 3. Person acquired the info in his professional capacity 4. Info is necessary for him to act in that capacity 5. Disclosure of the information would tend to blacken the clients reputation o Can you invoke this privilege in a criminal case? No, even if it would blacken your reputation. The privilege only covers civil cases. o Who is covered? Person must be a doctor of medicine, surgeon, or obstetrician What if he is an optometrist? No, because he/she is not a doctor of medicine What if he is an ophthalmologist? Covered What about neurologist? Covered What about psychologist? No, he must pursue further studies to be a doctor What about psychiatrist? Covered Who is an obstetrician? For pregnancy Alternative medicine practitioners and iridologists? No. o What is the key? You must be a doctor of medicine.

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The husband wanted to present the findings of the doctor on his spouse. Is the information covered by the privilege? No. The husband is not authorized to practice medicine. o Can the privilege be waived? Yes. o What if the doctor is merely presenting hypothetical facts and is acting as an expert witness, is this covered? No. D. Priest-Penitent o Requisites? 1. Confession made to minister or priest in his professional character, and in the course of discipline enjoined by the practice of denomination 2. Confession is of penitentiary character o A protestant religion does not require confession through a priest. If a protestant approaches her pastor and asks for a confession and discloses information in the course thereof, can the pastor invoke the privilege? No. It should be enjoined by the religious institution to which he/she belongs. Just like a Catholic confessing to a nun not covered by the privilege. o What if a group requires a public confession before a crowd? Not covered by the privilege. o If confession was to simply ask for guidance from a minister, is it covered? No. o Should the penitent be a member of that religious institution to which the priest belongs to? No. The priest will not ask anyway. E. State Secrets o What are the requisites? 1. Communication to public officer 2. Made to him in official confidence 3. When the court finds public interest would suffer by disclosure

Who is the subject of the privilege? The public office, as regards State secrets o Is this waivable? Yes. It should be done by the court, after application. E. Executive privilege o See Neri case. o Is this waivable? Yes, by the president. F. Other privileges o 1. Secrecy of bank deposits o 2. Non-disclosure of trade secrets o 3. Non-disclosure of who you voted for o 4. Newsmans privilege As to sources o 5. Informers privilege As to identity You dont need to bring to the stand an informer G. Parental and Filial privilege o What is this? Nobody may be compelled to testify against a direct ascendant or descendant o Is this waivable? Yes. o In a criminal case, no descendant may be compelled to testify against parents and grandparents, except: When the testimony is indispensable in a crime against the descendant or by one parent against the other

Admissions and confessions What is section 26? o The act, declaration, or confession of a relevant fact of a party may be given in evidence against him o What does this cover? Extra-judicial admissions, because judicial admissions are already covered by the prior rule (what need not be proved) Differentiate an admission from a declaration against interest:

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Admission Primary evidence receivable even if defendant is a witness Competent only when declarant is a party to the action, or someone identified in legal interest with him Need not have been considered against his interest when made

Declaration against interest Secondary evidence only when the declarant is unavailable as a witness Competent in any action to which it is relevant (although the declarant is not a party to the action) The declarant knew, when it was made to be against his interest

What is the rule on self-serving admissions? o In general, they are inadmissible. This extends even to agents and diaries of the party. o Exceptions? 1. Part of res gestae 2. In the form of a complaint or exclamations of pain and suffering 3. Part of the confession offered by prosecution 4. When the credibility of the party has been assailed 5. When offered by the opponent 6. Waiver What is the general rule on a third party (res alios inter actas rule)? o As a general rule, the acts, declaration, or omission of a third party cannot be used against you, except when it falls under the exceptions (res alios inter actas) What are exceptions? o 1. Agent or co-partner o 2. Co-conspirator o 3. Privies o 4. Co-owner, joint debtor, joint interest What are the requisites for admission of co-partner or agent? o N.B. these are more or less the same requisites in a conspiracy o 1. The admission should have been made during the existence of the relationship o 2. Done within the scope of the authority Ex. if agent, it must be covered by the agency o 3. Common interest o 4. The relationship is established by other evidence other than the admission

Ex. Special power of attorney, articles of partnership, etc. o Vehicular collision other driver works for company, said Im sorry. I was in a hurry, delivering goods for the company. You decide to file a case against the company. Is the admission admissible? Yes, the driver was an agent of the company: a) declaration, b) during existence of agency, c) within scope of authority, d) relationship is proven by other evidence Admissions of a co-conspirator requisites? o 1. Act/declaration relates to the furtherance of the conspiracy This is common design o 2. During the conspiracy itself o 3. The conspiracy is established by independent evidence o X is one of the conspirators and he takes the witness stand. Do these requisites have to apply? No. Remember, this rule only applies to extra-judicial confessions. If there is a judicial admission where the co-conspirator takes the stand, he can make such declarations that bind the co-conspirators. o X and Y were planning to rob a bank. W said, X tried to recruit me to join in the robbery by telling me that Y is in the plan and theyll make a million pesos. Admissible against both X and Y? Yes. 1) Statement is made by X, a co-conspirator; 2) it was made during the course of the conspiracy, 3) it was in furtherance of the conspiracy o X and Y already robbed the bank. One year later, W testified: Y told me that he and X were the ones who robbed the bank last year. Admissible against both X and Y? Only against Y, but not X. o D was charged with importation of marijuana and conspiracy to import marijuana. F told W (an undercover agent) that he just finished marijuana imports with D and he didnt like the way D ran things, and that he would rather do business with W. Admissible?

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No, because it was not in furtherance of the alleged conspiracy between F and D. Admission of joint owner, joint debtor, or one with joint interest requisites? o 1. There is a joint interest o 2. The act or declaration was made during existence of joint interest o 3. The act relates to the subject matter of joint interest o N.B. common interest (ex. all are devisees in a will) is different from joint interest Admission of privies requisites? o 1. Privity between the parties, where one derives title from the other o 2. Declaration made the when the privy held the property o 3. It must have been made as to title over the property o Give an example: X sold land to Y. While X holds the title to the property, he made statements as regards his title to the land. When Y holds the land, the statements made by X can be used against her. o What about statements made by transferors after the transfer? In general, these are inadmissible against the transferee. What are the exceptions? 1. Made in the presence of the transferee and the latter acquiesces or does not protest 2. Where there has been a prima facie case of fraud established (e.g. fraud in the transfer) 3. Where the evidence establishes a continuing conspiracy to defraud the conspiracy exists between vendor and vendee Do admissions of these third parties extend to court cases? Ex. Y testified against X on the witness stand that it was X who was in conspiracy with him. o No, these rules do not extend to cases already in court, because there is an opportunity to cross examine.

Is an offer of compromise admissible in evidence? o In civil cases, an offer of compromise is not an implied admission of liability it cannot be admitted as evidence o In criminal cases, it is treated as an implied admission of liability o What is the exception for criminal cases? 1. When the law allows for compromise 2. Quasi-offenses i.e. criminal negligence o What about a plea of guilty later withdrawn or an unaccepted plea of guilty to a lesser offense? It is not admissible in evidence against the accused. o What about tax violations with penal sanctions? Yes, these can be compromised. o Is extending offer for medical assistance to the victim an implied admission? No. When is an offer to help admissible to establish liability? When the offer to help is accompanied by an admission of liability. o Can offer of compromise by relatives bind the person? Only if the person had knowledge of it and did not prevent his or her relatives. o The JDR rule in criminal cases allows compromise where (the court here in mediation offers compromise)? Libel Theft Estafa BP 22 Criminal negligence o What is covered by the compromise? Only the civil liability But in practice, once you compromise the civil liability, usually the prosecution is no longer interested o Compare with admissions of liability: An offer to settle when there is no controversy at the time is not an offer of compromise but an admission of liability

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Admission by silence o What are the requisites? 1. Statement made in the partys presence or within his/her observation 2. Fact would have naturally called for a reaction if not true 3. To deny is proper under the circumstances Ex. there were armed 5 men who were speaking ill about X his silence may simply mean that he is being prudent 4. Matter is within the partys knowledge o X was making statements in the radio against Y, a public official. If Y does not react to the radio caller, is this an admission by silence? No. See requisite #1 below. Same with written letters. o Does this apply to those under custodial investigation? No. Admission by silence does not apply in this case because it would violate the persons constitutional rights.

Previous conduct as evidence and character as evidence What is the general rule as to prior conduct? o Generally not admissible. o What are the exceptions? To establish intent, knowledge, identity, plan, system, scheme, habit, custom, or usage, and the like. Mr. X and his group robbed BPI in Makati. X and his group were also suspected of robbing BPI in Intramuros. He was caught, and a case was filed against him. If there is a separate criminal case involving the robbery in BPI Intramuros, can the facts surrounding the Makati BPI robbery be appreciated? o No, not to establish a different robbery. But you can use it to establish any of the exceptions outlined above. o Ex. The manner in which the robbery was conducted is the same, showing a system. Examples:

INTENT ex. X charged for larceny of ring by substituting a fake one for a real one: may admit the fact that the same substitution occurred in two other stores where X was examining as purchaser to negate honest mistake. // X charged with larceny of purse: may admit the fact that she asked a customer is this your purse? to show good intent. o GUILTY KNOWLEDGE ex. X denied knowing the combination of a safe which has been opened and whose contents were stolen: may admit fact that X was seen surreptitiously opening the safe before to show knowledge. // X charged with uttering counterfeit money: may admit fact that X tried to pay the same notes to three other persons to show knowledge. o IDENTITY Robbery case where 7 robbers had stripes on their faces, making identification difficult. But one had pockmarks on his face and a scar on his left eyelid. The fact that the same marks were found on an individual robbing another house that night can be used to establish identity. o PLAN, DESIGN, OR SCHEME Ex. D on trial for killing C. May admit evidence that A and B were similarly killed by D, and an insurance policy named as beneficiary all four of them in that order (A, B, C, D) so that D killing C would fit the grand design of receiving insurance proceeds. o HABIT OR CUSTOM If course of conduct in a prior dealing is established as to render its continuance to the point in time in the question, then admit evidence to show that he acted in accordance with the habit. Ms. Y married Mr. A. She obtained insurance. A died. She married B. She obtained insurance. B died. She married C. She obtained insurance. C almost died due to poisoning. Are the previous deaths admissible? o Yes, but only to establish intent. What is the rule on unaccepted offer? o An offer in writing to pay a sum of money or deliver a written instrument/personal property, if rejected without valid cause, is equivalent to actual production and tender Character evidence: o What is the general rule as to character evidence? It is not admissible. o

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Why is character evidence generally inadmissible? 1. A person does not always act the same way 2. To prevent prejudice, and 3. To prevent multiplicity of issues o N.B. Make sure you distinguish civil and criminal cases o When is it applicable? Only when there is a character trait in the offense charged Ex. for murder/homicide violence Ex. for estafa dishonesty Ex. for rape sexual perversity of accused o For victim, chastity o What offenses have no character traits? Those covered by special laws; Ex. BP 22 Ex. illegal possession of firearms How to prove character evidence: o 1. Personal opinion inadmissible o 2. General community reputation admissible o 3. Previous conduct inadmissible [generally] Exceptions to general rule that character evidence is inadmissible: o Criminal case: 1. Character of the accused: Accused may prove GMC which is pertinent to the moral trait involved in the offense charged Prosecution may only prove BMC of accused which is pertinent to the moral trait involved in the offense charged in rebuttal 2. Character of offended party GMC or BMC of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged o Civil case: Evidence of MC of a party in a civil case is admissible only when pertinent to the issue of character involved in the case

So can there be character evidence when there is no issue of character in the case? o No. 3. For witnesses (regardless): Evidence of GMC of a witness is not admissible until such character has been impeached.

Hearsay rule and exceptions What is the hearsay rule? o A witness may only testify as to matters within his personal knowledge What is independent relevant statement? o When the statement is the fact of issue, or when the statement is circumstantial evidence of the facts in issue. o During Erap impeachment, his former Secretary Espiritu was placed on the stand and was asked about matters he conversed about with Estrada. He started talking, and there was an objection that is was hearsay. Is it hearsay? No, its not hearsay. The conversation actually happened and he can testify as to the conversation and what happened. But as to the truthfulness of these statements, they have to be established separately. What are the exceptions? o 1. Dying declaration o 2. Declaration against interest o 3. Act or declaration about pedigree o 4. Family reputation or tradition regarding pedigree o 5. Common reputation o 6. Part of res gestae o 7. Entries in the course of business o 8. Entries in official records o 9. Commercial lists, and the like o 10. Learned treatises o 11. Prior testimony Reputation As to pedigree Entries Course of business

Declarations Dying declaration

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Declaration against interest Declaration about pedigree Res gestae Prior testimony

Common reputation

Official record Commercial lists Learned treatises

[Declarations] 1. Dying declaration o Requisites 1. The dying person is under the consciousness of his impending death 2. Declaration relates to the facts/circumstances pertaining to the death 3. He should eventually die 4. The recipient of the information should be competent to testify o Does this extend to civil cases? Yes. As long as it pertains to the circumstances regarding his death. o There is a dying person on the floor and he calls X. He told X to tell his wife to handle his bank account, tell his children to manage the properties, etc. Is this the proper subject of a dying declaration? No. It does not cover circumstances re: his death. o What if he doesnt die? It becomes part of res gestae o What if the dying declarant made an ante-mortem statement, in writing, be presented in evidence? Yes, because this exception covers memoranda. 2. Declaration against interest o Requisites? 1. The person is dead/unavailable 2. Made statement against his interest 3. Would not have made that statement had it not been true

Extends to declaration against pecuniary interest, proprietary interest, criminal acts, etc. o Why is this reliable? Because by human nature, nobody will make a prejudicial statement against himself 3. Act or declaration about pedigree o What must be in issue? The pedigree of a person, even if not directly as long as it is relevant o Requisites? 1. The declarant is dead/unavailable 2. Declarant related by birth or marriage to the person whose pedigree is in question 3. The relationship between the declarant and the person whose pedigree is in question is shown by independent evidence 4. Declaration was made prior to the controversy So there is no motive to falsify o Must the witness be related to the declarant? No. He need not be. But the relationship should be between the declarant and the person whose pedigree is in question 4. Res gestae o What are the kinds of res gestae? A. Spontaneous statements B. Verbal acts o Requisites of spontaneous statements? 1. Startling occurrence 2. Spontaneous statements 3. Relating to the circumstances of the occurrence o What is to be testified on? His spontaneous statement o Why is this reliable? No time to fabricate After 24 hours, is it still a startling occurrence? Depends on how startled the person still is. If he was able to go out malling already, etc., then there was time to fabricate. o What are verbal acts?

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Statements made contemporaneous to an equivocal act and characterizing it Give an example of an equivocal act. X handed a wad of cash to Y. This can mean anything. Give an example of a contemporaneous act characterizing the equivocal act. I am lending this to you. NOTE: If Y testified, its not hearsay because it was told to him personally. If a third person who overheard it testified, this is when the exception applies. 5. Prior testimony/deposition of a witness o Requisites? 1. Witness is dead/unable to testify 2. Identity of parties 3. Identity of issues 4. Opportunity to cross-examine in the prior case Against int Dead/unav Statement against interest Wouldnt have said it if not true Pedigree Dead/unav About pedigree of person in Q Made prior to controversy Relationship by blood or marriage Independent evidence of relationship Res Gestae Even if alive Relating to startling occurrence During or near such startling occurrence Prior testi Dead/unav Same issues testified on Prior case between same parties Identity parties of

Dying Dead/unav Facts re: death Knows dying hes

1. There is controversy re: pedigree of any member of the family 2. Reputation or tradition existed prior to the controversy 3. Witness testifying must be a member of the family of that person, by consanguinity or affinity Or proved by family bibles, rings, etc. o What is reputation? How other people perceive one to be. o Can reputation be wrong? Yes. This is different from character who one really is o Who will testify? A member of the family by marriage or consanguinity. This is unlike declaration about pedigree. o What else? Family bibles, charts, rings, engravings, etc. 2. Common reputation o A. Public knowledge of more than 30 years This has a partner provision in documentary evidence (ancient documents) Give an example of public knowledge of more than 30 years. There is a marker in the barangay disclosing information on the founding of the barangay. Sometimes it can border on history, which will then become subject to judicial notice o B. Reputation about marriage How do you develop a reputation re: marriage? When people perceive them to be married. Ex. living in one house, with children, etc. Even if this is not true. o C. Reputation as to moral character

[Reputation] 1. Family reputation or tradition regarding pedigree o Requisites?

[Entries] 1. Entries made in the regular course of business o Requisites? 1. The person is dead/unavailable

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2. Made the entry in a position to know the facts, in professional capacity 3. Entries made at or near the time of transaction 4. Done in the regular course of business o Who is ideally the person testifying? The one who actually made the entries. This exception only applies if he/she is dead or unable to testify. o Who will then testify on his/her behalf if this occurs? Person who is also in a position to know the facts 2. Entries in official records o Requisites? 1. Made by public officer or person enjoined by law to make entry 2. Made in performance of duty 3. Had sufficient knowledge of the facts, personally or through official information o Does the official have to be dead/unavailable? No. o How do you use this provision? Secure a certified true copy, then you identify it and present it in court When do you present the original only? If there is issue as to its genuineness o Reason behind this provision? As to not waste the time of the public official 3. Commercial lists o Requisites? 1. Contained in published compilation 2. Generally relied upon by these persons 3. Statements are matters of interest to these persons engaged in the occupation o Why can you use this listing? It is used by the members of the profession and it is relied upon o How do you use this? Just present the commercial list, no need to present the writer o Give examples

SCRA (which is not an official publication, but used and relied upon) Buy and Sell paper NO. Because it is used, but not reliable. Stock Market listings 4. Learned treatises o Covers history, science, law, and the arts ONLY o So it wont cover billiards, or whatever o How do you present? 1. Court takes judicial notice that the writer is an expert recognized in his profession 2. Bring in an expert witness to testify that the writer is an expert in his profession

Opinion rule What is the opinion rule? o It means that only an expert can give an opinion. An ordinary witness cannot normally give an opinion. What can an expert testify on? o Skill, knowledge, expertise, or training Is an academic degree required? o No. Just the special skill, knowledge, expertise, or training. Unless, of course, the knowledge or skill requires an academic degree. There are two kinds of experts: o 1. Expert with personal knowledge of the facts Ex. medico-legal officer who examined a dead body o 2. Expert with no personal knowledge, only hypothetical facts Can an ordinary witness give an opinion? o General rule: no. o Exceptions: 1. Handwriting of which he has sufficient familiarity 2. Identity of which he has adequate knowledge Not required to know the name, relationships, etc. Just as long as you can sufficiently identify the person. 3. Mental sanity of person with whom you are acquainted with

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4. Impressions on emotion, behavior, condition, appearance

Burden of proof and presumptions Distinguish burden of proof from burden of evidence? o Burden of proof sticks with the party from the beginning until the end. Ex. Breach of contract for damages burden starts with the plaintiff and ends with the plaintiff o Burden of evidence shifts What is the difference between conclusive and disputable presumptions? o Conclusive presumptions cannot be rebutted What are the conclusive presumptions? o 1. Estoppel in pais This is regular estoppel Requisites: 1. Representation 2. Lack of knowledge in the other party 3. Reliance Similar estoppel: Estoppel by silence Estoppel as to question of jurisdiction o 2. Estoppel by deed What does deed mean? It means a written document This has a very limited application: only covers a landlord-tenant relationship Upon signing the deed, it is a recognition of the landlords title. You can only challenge it after. What are common examples of disputable presumptions? o 1. Presumption of innocence When does this arise? 1. Only when charged of an offense 2. And one is an accused in that case o 2. Presumption of regularity When does this arise? 1. There is a public officer o

2. Performing his official function 3. When a court renders a decision: It acted within its jurisdiction It passed upon all questions 4. On filiation When a child is born within 300 hundred days of termination of the first marriage AND before 180 days after the solemnization of the second marriage it is considered to be conceived from the first marriage When a child is born within 300 hundred days of termination of the first marriage AND after 180 days after solemnization of the second marriage it is considered to be conceived from the second marriage What if the child is born after 300 days after dissolution of the marriage? There is no presumption Whoever alleges legitimacy or illegitimacy must prove it 5. Absence What does absence for 7 years establish? Death, for all purposes EXCEPT succession When does succession open? o After 10 years What if the person is over 75-years old? After 5 years is enough to establish death What are the exceptional circumstances that establish death in a shorter period? 1. Vessel or aircraft goes missing and he was not heard of for 4 years 2. Person took part in armed hostilities and missing for 4 years 3. Person under danger of death in other circumstances and is missing for 4 years What is the rule for marriage? Can contract subsequent marriage after absence for 4 years What if the spouse disappeared under exceptional circumstances?

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o 2 years of absence is enough Is declaration of presumptive death of the spouse to contract subsequent marriage a special proceeding? o No. o This is a summary procedure under the Family Code 6. Survivorship for those who died due to calamity, wreck, battle, or conflagration Follow what rule? Strength and age of the sexes For what purpose can this be used? ANY purpose except succession Allowed for: Insurance Survivorship agreements

Conduct of proceedings in the courts What is required before witnesses testify? o Place the witness under oath or affirmation o Oath imploring divine guidance o Affirmation for those who dont believe in God Whose duty is it to receive evidence? o The judge Can delegate to the clerk of court in certain instances o How is it recorded? 1. By stenographer 2. By stenotype 3. By any other means of recording found suitable by the court What questions can you NOT ask to witnesses? o 1. Immaterial, irrelevant, impertinent questions o 2. Questions that expose him to criminal liability violates right against self-incrimination What if its only exposing him to civil liability? You can ask the question But not if it exposes him to criminal penalty o 3. Degrading or humiliating questions

What is direct examination? o Examination-in-chief of the prosecution presenting to the witness facts relevant to the issue o What is examination-in-chief? One that establishes what the prosecution seeks to prove Evidence-in-chief is what your witness will testify on in direct examination. So if you have eight witnesses, you have eight evidences-in-chief What is cross examination? o 1. Test the accuracy and truthfulness of witness testimo ny o 2. To elicit all information from the witness o What matters can be raised, in general? Matters touched upon on direct examination or connected therewith and to elicit all important facts bearing upon the issue So this is more on accord with the English rule, rather than the American rule. Thus, matters are not limited to those raised on direct. o When does cross examination become a mere privilege? When the original cross-examination has ended and the witness is simply recalled What is redirect examination? o Allow a witness to explain or supplement matters raised in cross-examination o May the courts allow questions on matters not raised on cross? Yes, in their sound discretion. What is re-cross examination? o To examine matters raised in re-direct o May the courts still allow questions on matters not raised on redirect? Yes, again in their sound discretion What is the rule on recalling witnesses? o It cannot be done without leave of court, which exercises discretion based on the interests of justice What are leading questions? o Questions which suggest to the witnesses the answer which the examining party desires

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Are leading questions allowed? o As a rule, not allowed in direct examination. o When else can you ask leading questions? 1. Cross examination 2. On preliminary matters Ex. Mr. X, you said a while ago you were an employee of the petitioner corporation. Are you an employee? 3. Witness is ignorant, child of tender years, feebleminded, or deaf-mute And there is some difficulty to get direct and intelligible answers 4. Unwilling or hostile witness N.B. There must be a court declaration to make a person a hostile witness Who is a hostile witness? o 1. Adverse interest o 2. Unjustified reluctance to testify o 3. Misled the party into calling him 5. Adverse witness adverse party or officer/director/managing agent of juridical person who is an adverse party What are the two ways to impeach the witness? o 1. Prior inconsistent statement o 2. Contradictory evidence N.B. cannot impeach through contradictory evidence on mere collateral matters o 3. Reputation of the witness for honesty/truth/integrity of the witness is bad o 4. Producing court record for conviction for an offense May a party impeach his own witness? o As a rule, no. o Except when the witness is unwilling, hostile, or the adverse party and the examining party has to have the court declare him as a hostile witness o What is the only evidence that cannot be used in impeaching? Evidence of bad character (remember, this only applies on rebuttal)

May the other party still cross-examine the hostile witness? Yes. What are the two kinds of memorandum? o 1. Present recollection revived Memorandum written by him or under his direction: A. When the fact occurred or immediately after B. Any other time when it was still fresh in his memory o 2. Past recollection recorded Witness has no recollection but states that the writing correctly reflected the transaction when made o When do these apply? In both cases he knew, he was in charge, or he prepared it. Thats why he can testify. So even if there is no independent recollection, he can testify. o What is the purpose? To refresh his memory o What is the evidence? If the witness has independent recollection, then the testimony is the evidence. If he has no independent recollection, the memorandum itself is the evidence. But it must be taken with caution. What is the rule of completeness? o When a party gives as evidence part of an act, writing, declaration, conversation, or record, the other party may inquire into the whole of that evidence. o What if it is one letter in a chain of letters? Admitting one necessarily allows the other letters in the chain to be admitted o What if part is privileged? It is waived.

Authentication of documents N.B. Whether public or private, the document must be authenticated. What are the kinds of public documents?

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1. Written official acts or records of sovereign authority Whether Philippines or other country o 2. Documents duly acknowledged before a notary public except wills Not just notarized, but must be acknowledged Except last wills and testaments o 3. Private documents recorded in a public office Ex. affidavit of adverse claim in a R.O.D. What are private documents? o All other documents not falling under the prior three What is the distinction? o Public documents are admissible without further proof of due execution and genuineness; private writings must be proved as to authenticity and due execution o Public documents bind even third persons as evidence; private documents only bind the parties as evidence How do you authenticate acts of sovereign authority? o Certified true copy or official publication o If it is from a foreign country? Certification from foreign service officer How do you authenticate a duly acknowledged document before a Notary Public? o Certificate of acknowledgement of the document itself o If by chance, your copy is lost, where do you go? You could get a certified true copy from the RTC who commissioned him to notarize documents (he submits the books to the RTC) How do you authenticate private documents recorded in a public office? o Can be proved by original record or a certified true copy o Can there be a certificate of no record? Yes. How do you authenticate a private document? o 1. Genuineness of the handwriting by anyone who saw the document executed or written o 2. Evidence of genuineness of the signature/handwriting of the maker How is genuineness of handwriting proved?

1. Witness believes it to be the handwriting of such person because: A. he saw the person write it or B. he has seen writing purporting to be his, upon which the witness has acted upon or was charged, thus acquiring knowledge of such o 2. Comparison by the witness or the court with: A. other writing admitted or treated as genuine by the party against whom the evidence is offered or B. proved to be genuine by the judge What private documents need not be authenticated? o 1. Ancient document o 2. Admitted by the adverse party o 3. Immaterial o 4. Document need only be identified What is an ancient document requisites? o 1. Document existing for at least 30 years o 2. Unblemished o 3. In the custody of one who must be with possession over it What is alteration? o When there is one, you have to account for it 1. There is consent 2. There is knowledge 3. Did not change the meaning 4. Properly or innocently made Can you impugn judicial records? o Yes. o How? 1. Want of jurisdiction 2. Collusion 3. Fraud

Offer of evidence What is the rule on formal offer? o Evidence must be offered, or else the court will not consider it as evidence When is it made?

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After the documents as marked, and all the witnesses are presented Is offer of testimonial evidence the same? o Its not, because its made before you present the witness When is objection made? o Evidence offered orally: made immediately after offer is made o Evidence offered in writing: within 3 days after notice of offer, unless court allows different period o Question propounded in oral examination: as soon as ground becomes reasonably apparent o FOR ALL: must specify grounds for objection What is a continuing objection? o Objection of the same character after the grant or denial of the same objection o A one-time statement covering objections of the same character o Does it have to be ruled upon by the court? No. When does the court rule on the objection? o Immediately after it was made. No need to state the reason for overruling or sustaining it. Except if the objection was on two grounds; court must state which ground was sustained. o What is the exception? If the court needs reasonable time to decide. But the ruling must still be given during trial to give the party who posed the objection to meet the situation o What if the evidence is erroneously rejected? Can be ground for new trial. UNLESS it would not have changed the decision. What is the rule on striking out answers? o It applies when the witness answered the question even before the adverse party had the chance to object And the objection is meritorious o Upon motion, what answers can the court strike out? 1. Incompetent 2. Irrelevant 3. improprer What is proffer of evidence?

o o

This is tender of excluded evidence So for instance an excluded witness can still be presented through an affidavit showing her qualifications and the substance of her testimony so it can be considered on appeal

Weight and sufficiency of evidence What is the equipoise rule for preponderance of evidence? o When there is equipoise, the party with the burden of proof fails When the evidence of one side is stronger than the other, does it mean there is already preponderance of evidence? o No. One must still rely on the strength of ones case rather than weakness of the other. Is an extra-judicial confession sufficient ground to convict a person BRD? o No. It must be corroborated by evidence of corpus delicti. o But plea of guilty in open court is sufficient. What is needed for administrative cases in QJAs? o Substantive evidence o Where else does this standard apply? Investigations in the workplace QJAs that proceed like the NLRC Circumstantial evidence o Can it be a basis of conviction? Yes There should be more than one circumstance And when taken together, they form proof beyond reasonable doubt o Can it be the basis of identification? Yes Can the judge stop the presentation of evidence? o Yes, if the judge feels there is no more need for additional evidence;

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PART IV: SPECIAL PROCEEDINGS

In general Distinguish between an ordinary civil action and a special proceeding: Spec pro Establish right, status, or particular fact Theres public interest also binds the world (generally). So it must be published. Motions/application Multiple appeals Record of appeal (voluminous) 30 days

Civil action Enforce/protect right or prevent/redress wrong Private interests

Formal pleadings Single appeal Notice of appeal (usually one page) 15 days

Does the prior requirement of earnest efforts to compromise between relatives apply to settlement of estate? o No. Earnest efforts to compromise does not apply here, because that only applies to civil actions. Settlement of estate is a special proceeding. Can the court in an ordinary action settle issues relating to special proceedings? o No. For instance, the complaint filed in the RTC was an ordinary civil action for annulment of sale. An ordinary action cannot settle issues relating to special and limited jurisdiction of special court (ex. settlement of estate). Subject matters of special proceedings: o 1. Settlement of estate o 2. Escheat o 3. Guardianship o 4. Trustees o 5. Adoption o 6. Revocation of Adoption o 7. Hospitalization of insane persons o 8. Habeas corpus o 9. Change of name

10. Voluntary dissolution of corporations now with the SEC 11. Judicial approval of voluntary recognition of minor natural children no more natural children o 12. Constitution of family home operation of law under FC o 13. Declaration of absence and death o 14. Cancellation/correction of entries in civil registry What other cases are considered special proceedings? o 1. Liquidation o 2. Arbitration o 3. Alternative Dispute Resolution (ADR) o 4. Corporate rehabilitation o 5. Writ of Amparo o 6. Writ of Habeas data What is the exception to the general rule that declaration of absence and presumptive death is a special proceeding? o Declaration of presumptive death for purpose of remarriage applied FC rules on summary proceedings. What is the nature of special proceedings? o Special proceedings are non contentious proceedings. o o

SETTLEMENT OF ESTATES Extrajudicial settlement What are the modes of extra-judicially settling estate? o 1. Extrajudicial settlement through public document filed in ROD o 2. Ordinary action for partition (Rule 69) o 3. Affidavit adjudicating estate to sole heir A judge reopened settlement proceedings for intervening illegitimate children. Is this proper? o Yes, but he should have made them present evidence first to establish their right, prima facie. Can there be EJS even if there is an administrator already? o Yes. The States underlying reason for favoring extrajudicial settlement cheaper, faster, simpler o Two requisites: 1. Move for appointment of another administrator (because it is a new estate already)

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2. 2 year period Requirements for summary settlement? o 1. Gross value of estate = 10K or less o 2. Whether the decedent left a will or not, DOES NOT MATTER o 3. Hearing from 1-3 months after last publication 3 consecutive weeks in newspaper of GC in province + notice to interested persons o Why is it summary? No administrator or executor o What must the court do? Determine if there are creditors Difference between summary settlement and usual judicial probate/admin proceedings: o No more portion where the court appoints an administrator Requisites for EJS? o 1. No will o 2. All heirs of legal age, or minors duly represented o 3. No debts What are the procedural matters? o Record in public document, submitted to ROD o Publication of fact of EJS (so its post hoc) in newspaper of GC 3 consecutive weeks in province o Bond for personal property Can easily be disposed of Unlike real property which you can annotate What if there is an adverse claim? o In summary settlement of estate (for small estates), whatever adverse claim can be protected by annotation lis pendens. This should not bar the distribution of the estate Procedure? o Real property: Public instrument Registration (notice to the world) annotate/lien o Personal property: File bond When is the decedent presumed to have left no debts?

When no creditor files a petition for letters of administration within 2 years of the death of the decedent Is it mandatory for heirs to have an EJ partition? o No. o General rule: settlement is judicial. If no will, no debts, all heirs of legal age EJ. But can still do judicial, if there are good reasons. But a mere spat is not a good reason. o The heirs can pray for: 1. Dismissal of judicial case, if theyre happy with the partition 2. Conversion of the action to an ordinary action for partition What if its in a private instrument? o Still valid. o Note though, that for lack of registration, it will only bind the heirs. In a case, the ones that donated the land postsettlement were heirs so they should have been bound to the EJ settlement. Does posting of a bond terminate the annotation of adverse interest? o No. The two year period has to lapse first. o Could not substitute annotation with bond. The bond only applies to personal properties. What if the heirs could not actually physically divide the property? o Continued co-ownership could be allowed, by the parties agreement. No need for spec pro in this case. X left a will and died. Can the heirs enter into an EJ settlement of the estate? o Yes, as long as they submit the will for probate and the terms of the EJ settlement do not vary the terms of the will. Probate of a will is compulsory. What if an heir or creditor is excluded? o Can go against bond (personal property) or the real property within 2 years after settlement and distribution of estate by petitioning for settlement of estate o What if the person is a minor, incapacitated, is in prison, or outside the Philippines? May present claim within 1 year from disappearance of disability

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What are the remedies against EJS when a creditor or heir is excluded? o Excluded creditor 1. If personal, go against the bond 2. If real, annotation o Excluded heir 1. Letters for administration 2. Petition for probate of estate 2 years 3. Rescission/partition 4 years 4. Annulment on ground of fraud 4 years From discovery of fraud 5. Action reivindicatoria 10 years Count from registration: when implied trust is renounced (already claiming ownership)

Judicial settlement Which court has jurisdiction in probate/admin proceedings? o JURISDICTION: MTC 300,000 and below (outside MM) 400,000 and below (MM) RTC Above 300,000 (outside MM) Above 400,000 (MM) o VENUE Resident Where the person resided Non-resident Any place where estate is Differentiate residence from domicile: o Resides" should be viewed or understood in its popular sense, meaning, the personal, actual or physical habitation of a person, actual residence or place of abode. It signifies physical presence in a place and actual stay thereat. o Domicile requires bodily presence in that place and also an intention to make it one's domicile. For residence, no particular length of time is required though; however, the residence must be more than temporary.

Is venue waivable? o Yes. As this issue is only a matter of VENUE, it is not jurisdictional. Implication: it can be waived. What is the exclusion rule? o When a probate court has taken cognizance of the proceeding, it excludes all other courts. What is the meaning of taking cognizance in the exclusion rule? o The court has to do something. So not where you first filed, but the court that first acted. What is the limited and special jurisdiction of the probate court? o General rule: probate court cannot pass upon issues of ownership; can only pass judgment on jurisdiction or probate of a will o EXCEPTIONS: 1. For purposes of inclusion in inventory If all of the parties are heirs and they submit the issue of ownership to the probate court and there is no third party prejudiced Question of collation or advancement 2. All the heirs consent o What are the implications of this rule? The court cannot include in the estate property registered in anothers name The court cannot include in the inventory property which belong to a third person o But the court may: 1. Issue warrants and compulsory processes to carry into effect orders and judgments 2. All other powers granted by law What issues can be resolved by the probate court? o 1. Identity of the will o 2. Due execution of the will o 3. Capacity of the testator Maloles II v. Phillips: In the lifetime of the testator, he filed an admission for probate. So when the nephew filed a motion to intervene, the proceedings have already terminated. Thats why when th e deemed executrix filed for letters of administration in another court, that court said that the first court having jurisdiction over the first probate proceedings must have jurisdiction.

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Alipio: Creditor collecting from CPG for a debt cannot sue the surviving spouse; must file a claim in the settlement of the estate of the decedent. Reyes: An adoption decree cannot be subject to collateral attack in a probate proceeding. Settlement of estate of a person presumed dead how is the estate dealt with? o He is entitled to the balance of his estate after payment of debts o Balance may be recovered by mere motion in the same case where he was declared presumptively dead

Production of will as necessary Why is probate mandatory? o Policy of law is to allow a person to freely dispose his property after death. Respect the wishes of the decedent. Why is probate necessary? o A will that is not probated does not pass property. o To prove due execution of the will What are the issues of due execution included in probate? o 1. Compliance with formalities o 2. Mental capacity What are the issues excluded from probate? o Intrinsic aspect of the will (ex. preterition) What is the implication of allowance of the will in probate? o Once a will has been probated, no more questions re: validity of the will may be raised o An order admitting the will to probate is considered final and appealable. So it can be appealed o Probate and authentication are the same: court really just rules upon the extrinsic validity of the will. o What is the rule on extrinsic validity as to probate? Conclusive as to due execution. o What about intrinsic validity? Cannot raise these issues as a general rule. Exception: when seen on the face of the will, or for practical purposes. Does prescription apply in the probate of wills?

No. Prescription does not apply in the probate of wills. It is not a right but a duty. o Courts duty is to admit to probate unless one of the grounds to oppose applies. Exception to probate? o Summary settlement of estates less than P10K (even if there is a will) Because probate is mandatory, what are the responsibilities of the custodian of the will or the executor? o 1. Custodian of the will must within 20 days of learning of death of testators death, deliver to court or to named executor o 2. Executor to court Within 20 days of learning of death OR if appointed after death, then within 20 days What happens if they fail to comply with the duties? o Subjected to fine or detention

Allowance or disallowance of the will Procedure for probate: o 1. Application o 2. Court to set hearing date and time o 3. Publication (if testator is the one who petitioned, no need) o 4. Notices sent o 5. Hearing Who may file the application for petition? o Executor, legatee, devisee, any person with interest o Testator himself Distinguish probate of a will post-mortem and ante-mortem. o Post-mortem A. Executor, heir, administrator, or any interested person can apply B. Notice given to compulsory heirs Notice given to all heirs too by publication o Ante-mortem A. The testator himself applies B. Notice given to compulsory heirs No notice to other heirs by publication When can it be filed?

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o Any time May the testator himself file? o Yes. What are the contents? o 1. Jurisdictional facts o 2. Names, addresses, ages of heirs, devisees, legatees o 3. Probable value and character of property o 4. Name of person for whom letters are prayed o 5. If will not delivered to court, the name of the person with custody thereof What are the jurisdictional facts? o 1. The person executed a will o 2. Died in province of RTC or if non-resident, owned property there o 4. Submit will to court Three ways of consolidating cases? o 1. Recast and conduct one hearing only and one decision o 2. Consolidate all cases into one hearing, one decision o 3. Principal one heard and suspend others Who must the applicant be? o Applicant must be executor of the will, or must have custody over the will What must be submitted? o Must submit original of the will; if mere copy, explain why. A will was submitted for probate. Can the heirs then decide to just file a separate case for partition of property? o Cannot file subsequent separate case for partition of property, because everyone is bound through publication (notice to whole world) of the probate proceedings o Contrast this with situation where the heirs first prayed for the dismissal of the settlement proceedings and converted it to partition proceedings What is the nature of the probate proceeding? o Probate of will is in rem; court acquires jurisdiction over all interested persons and any order binds the whole world o Mandamus to undergo publication is not the proper remedy must appeal in due time and manner What is the rule on publication?

Newspaper of general circulation: published regularly, appeals to general interest, bona fide subscription list o Need not wait full three weeks before the day set for hearing st (can publish for three consecutive weeks for 15 days 1 day, th th 8 day, 15 day) How do you serve notices? o 1. To place of residence o 2. Prepaid o 3. Through mail (20 days prior to hearing) o 4. Personally (10 days prior to hearing) What is the implication of failure to send personal notice? o If the addresses of the legatees and devisees are known, then failure to send personal notice is fatal. o Exception: if there was no notice sent because the address indicated was wrong. What if non-compulsory heirs are not given notice? o In a case, two heirs were not given notice (grandchild and niece) but since they are not compulsory heirs, this was not fatal. What if it is the testator himself that submits the will for probate? o No need for publication o Notices only to compulsory heirs What happens first during hearing? o First, present jurisdictional facts (death certificate, barangay certificate, will, publication and notice, etc.): 1. Attach three weeks publication 2. Affidavit of publication What happens when there is an opponent for a holographic will? o At least 3 witnesses who know the handwriting and signature of the testator must attest. o May resort to expert witnesses If notarial will? o All the subscribing witnesses and the notary must attest o If some are not there, explain o Cabang: If probate of will is opposed, all subscribing witnesses of a notarial will must be presented. Here, just 1 invalid. o What are exceptions to the rule that for opposed wills, one must present all the subscribing witnesses?

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Avera: if the issue was raised for the first time on appeal What if all the witnesses are outside the province of RTC? o Take one witnesss deposition What if the witnesses are dead? o May admit other witnesses to prove due execution of will. (Prove handwriting, etc.) What are the recourses of excluded heirs against a decree of probate? o 1. Relief from judgment (60 days from knowledge + 6 months from decree) o 2. Certiorari (Rule 65) o 3. Independent civil action (NCC, Art. 1114), assuming decision is obtained through fraud What if the alterations on a holographic will were not dated and signed? o This non compliance with Arts 813 and 814 does not affect extrinsic validity of the holographic will (which only requires that it be written, dated, and signed) What if the original proponent of the will died? o Substitute proponents amended petition already deemed to have fulfilled publication and notice. If the will is lost or destroyed, how can it be proved? o 1. Establish its existence o 2. It was fraudulently or accidentally lost/destroyed o 3. Two credible witnesses prove its contents What are the rules for probate before foreign courts? o The fact that a foreign court is a probate court must be proved, in the absence of which, procedure assumed to be the same as here in the Philippines o Proof of foreign laws must be submitted

2. Set hearing 3. Give notice as in the case of the original will presented for allowance o 4. ALSO publication, not just notice (jurisprudence) Difference between principal and ancillary administration? o Ancillary administration is administration of the decedents estate other than the one in which she lived, to dispose the property she owns there. This is subordinate to, and in aid of, principal administration. o Duty of ancillary administrator is to present evidence to support To which properties does administration extend for these cases? o Administration only extends to property within State or country where letter was granted o No power beyond that. What does the court issue thereafter? o Certificate of allowance

o o

Letters testamentary and of administration When are letters testamentary issued? o 1. Will has been proved o 2. Person is competent o 3. Accept trust o 4. Give bond When is an administrator appointed? o 1. When no executor in named or o 2. The executor is disqualified, he refuses the trust, or fails to give a bond or o 3. A person dies intestate o What is the procedure for the issuance of letters of administration? 1. File petition 2. Court sets hearing 3. Issue order granting letters o What are the jurisdictional facts? 1. Death 2. Place of death (residence) 3. Nonresident To whom is the letter of administration granted?

Allowance of will proved outside the Philippines and Administration of estate thereunder What is the proceeding for a will allowed outside the country? o 1. Upon due authentication of Will AND order or decree of allowance

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1. Surviving spouse, next of kin, or both, or person appointed by the SS or next of kin o 2. One or more of the principal creditors If the ones in #1 are incompetent or unwilling Or if they neglect to apply for administration within 30 days of death of decedent What is the nature of this 30 day disqualification? The 30-day rule disqualifying SS and next of kin must only apply when there is good reason to exclude them. (Gabriel) But some cases applied the 30 day rule strictly o 3. Any other person the court selects o Must this order be followed? Yes. o Who has discretion to appoint an administrator? The Court has discretion to appoint administrator. Must show proof of filiation. o Can the court pass upon issue of filiation? Yes, the court can pass upon filiation issue in determining order of interested person as administrators Who may not serve as administrators? o 1. Minor o 2. Non-resident o 3. Unfit to perform (DILM) Drunkenness Improvidence Lack of understanding or integrity Moral turpitude conviction o What if there is a claim of incapacity? Hold a hearing if there is claim of incapacity or disqualification What are the grounds to appoint a co-administrator? o 1. To represent different interests o 2. Justice and equity demands opposing factions to be represented o 3. large or perplexing estate o 4. To satisfy all persons

5. When person appointed entitled to have another competent person assist him Up until when does the court have the power to appoint an administrator or a co-administrator? o Probate court may re-open the administration issue as long as it retains J over spec pro. o Ex. Appoint co-admin which knew details of estate. What if the administrator has some conflict of interest with part of the properties being administered? o Exclude the property in which the administrator had conflicting interests as appellant and appellee o Do not remove him as administrator, but just exclude him from the property in question

Opposing issuance of Letters Can petitions for administration be opposed? o Yes. o On what grounds? 1. Incompetency of the person prayed for 2. Contestants own right to be administrator o To whom? To contestant or another person prayed for Sec 1 of Rule 79 what does A petition may at the same time be filed for LOA with the will annexed? o When there is no executor or the one appointed is incapacitated. Or when you are questioning the will. Who are the ones who can file an opposition to the issuance of letters? o Interested persons. Interest must be direct, not just indirect or contingent What if there is an heir who assigns his share during the pendency of the proceeding? o If assignment of share occurs in the pendency of the case, still entitled to notice because the court retains jurisdiction over the person and that person is still interested. The court must approve assignment. What if the assignment occurs before settlement of estate?

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If assignment of share occurs before settlement of estate, no interest anymore. Is the fact that an administrator lacks capacity a jurisdictional issue? o No. If the administrator is not an interested party, the motion to dismiss filed by the opponent must not be based on lack of J by the court, but lack of legal capacity of the administration. o Administrators capacity is not jurisdictional fact.

appeal, but not the spec pro. So it may continue to make decisions re: appointment of administrators. Does the order of preference apply to SAs? o No. Order of preference does not apply in appointment of SA.

Bonds of executors and administrators Can the probate court execute bonds too? o Yes. Given that the probate court has the jurisdiction and power to require bonds, then execution of bond is also within jurisdiction of court. What are the two most important conditions in the bond? o 1. Inventory within 3 months o 2. Accounting within 1 year

Special Administrators When do you appoint a special administrator? o 1. When there is a delay in granting letters testamentary or of administration by any cause (including appeal from allowance or disallowance of the will) o 2. If the executor or administrator himself has a claim against the estate (but the SA is only for that limited purpose for the claim) What can an SA do? o 1. Preserve property, rights, credits for future E/A o 2. Maintain and commence suits as SA o 3. Sell only perishable property and those ordered sold o N.B. not liable to pay debts of the deceased Can there be two SAs? o Yes. There can be two special administrators to represent interests fairly and equitably. Can the court allow the SA to dispose of other property, and not just perishables? o Yes, but must liquidate first and prove ownership. De Guzman: o Delay caused on probate due to analysis of validity of a prior deed of donation covering the estate property is any cause contemplated in provision re: delay and appointment of SA. o The partisan possession by respondents cannot replace the neutral possession of SA. After appeal, may the court still appoint administrators? o Yes. o Nature of appeal in spec pro is record of appeal, so after the appeal, the court only loses jurisdiction over the subject of

Revocation of administration, death, resignation, removal Generally, when may the court remove executor OR administrator? o 1. Neglects to render account and settle estate according to law o 2. Failure to perform order or judgment of court or duty under ROC o 3. Absconding o 4. Becomes insane or incapable to discharge the trust When is another ground where the court may revoke letters of administration? o If a will has been proved and allowed by the probate court Who has discretion to remove the administrator? o Removal of administrator lies within discretion of court appointing him. BUT give that administrator his day in court prior to removal. o General rule: never interfere with discretion of the court. What if the administrator fails to render accounting? o Rendering of accounting after 1 year is mandatory; negligence is a ground for removal from appointment What is required to remove an administrator or executor? o Sufficient evidence of failure to pay real estate tax and to render proper accounting.

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Inventory and appraisal What should be included in the inventory? o All real and personal properties in estate o In possession OR within knowledge What are not included? o Provisions to be consumed or for familys subsistence When is the administrator supposed to submit the inventory? o Within 3 months after appointment o 3 month period to submit inventory is not a mandatory period (Sebial) If the administrator fails to submit the inventory within 3 month period, and the interested parties file a motion to remove him as administrator, can the administrator invoke the Sebial case? o No, he can still be removed. The Sebial doctrine is only with re: the court being able to approve inventory filed beyond 3 month period. (THUS, Sebial is a jurisdictional issue.) Is the inventory conclusive on the issue of ownership? o Inventory is merely provisional and is not determinative of the issue of ownership. Separate action necessary to determine issue of ownership and recover of possession. Who gets provisional support? o 1. Widow, 2. Children (minor or incapacitated) o That children are all of age, gainfully employed, or married does not affect whether they should receive right to allowance under Art. 188. The Civil Code makes no distinction; the ROC cannot limit it. The wife that would get support is the legitimate spouse. o Grandchildren not entitled to provisional support from the funds of the decedents estate. The law limits allowance to widow and children, and does not extend it to the grandchildren.

Failure to comply with order of a court what is the consequence? Partner can be held in contempt What is the power of the executor or administrator of the estate of a deceased partner? o Can access records, books, and papers of the partnership and demand the production of such from the other partners Is court approval needed to lease property of estate? o No. Court approval not required prior to an administrator leasing a property in the estate, because this is not an act of ownership. What is the prohibition as regards this lease? o The administrator cannot lease the property for himself, directly or indirectly (ex. acting as agent for the partnership leasing the property) What is the remedy to annul a contract? o Separate action to annul. What is the extent of the rights of the A/E over the property? o Exercise of rights of A/E over property is for payment of debt or for administration expenses. It is not absolute. o

Accountability and compensation of executors and administrators What is the rule on increase or loss of value? o The E/A cannot profit on sale for amount greater than value must account profits to the estate o The E/A is not liable for losses without his fault Until when does the duty to account apply? o Until the final order for closure and termination of administration. It lasts until the estate is wholly settled. o Even after final accounting, as long as there is administration. What if the executor or administrator resigns? o The duty applies notwithstanding the existence of compromise agreement confirming his resignation as co-executor. o Duty cannot be waived or disregarded. What if the administrator uses the property of the decedent (ex. occupying it)? o He must account for it as may be agreed upon between him and the interested parties (akin to rentals)

General powers and duties of executors and administrators Can an executor/administrator have access over partnership books? o Yes. It only extends to a partnership but not a corporation, because there is succession in corporation.

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When does the administrator have to render account? o Within one year from receipt of Letters. o Punongbayan: Exceptional circumstance In this case, the co-administrator cannot be compelled to account because he had only been coadministrator for one day when it was filed. But the denial of the motion to render account does not preclude the co-administrator from rendering account, but within 1 year from receipt of letters of administration. What is the rule for attorneys fees? o Rule with respect to claiming fees: if lawyer and administrator at the same time cannot claim from estate, but from the executor/administrator. o If you are an administrator and engaged services from a lawyer, then you can claim from the estate as expenses that benefited the estate. What if the executor or administrator refuses to pay the attorneys fees, what are the modes of recourse of the lawyer? o 1. File an action against admin but in his personal capacity and not as admin. o 2. File petition in the testate/intestate proceedings asking court to direct payment of fees as an expense of administration. In this option, essential to give notice to all heirs and interested parties. May the law firm of the lawyer-admin claim attorneys fees? o Appointment of individual lawyer from a firm is separate from that of his law firm separate persons. The Law Office cannot claim attorneys fees when it was not appointed co administrator. Instead, claim from the heirs that it helped, as legal fees (but not as admin.) What is the nature of compensation? o Compensation is in the nature of commissions, and not attorneys fees. o A greater sum than that provided in the rule is allowed in special cases where the estate is large, and the settlement was difficult, and required high degree of capacity (extent of care) on the part of the E/A. SounJETBT1 0 0 3(d)3(w)15(y)7(e)-3(r a)-5(n)-3(d)-3( a)-5p3 9 Tf1 w 1 170.1 242.66 88.344 Tm[<00B1>] TJ1 0 0 1 120Tm[n4-6( t)9366 3

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What is the period for filing claims? Court sets a period not less than 6 months from first notice but not more than 12 months If there is a creditor who fails to claim, with just reason, the court may grant at most a 1 month extension; but this must be before order of distribution What claims are covered? o 1. Money claims (Rule 85, Sec 5) Arising from contract, express or implied Whether due, not due, contingent o 2. Claims for funeral expenses and expenses in last sickness o 3. Judgment for money Procedure: o 1. Filing of claims o 2. Answer (15 days) 1. Admit 2. Oppose o 3. Goes to trial What is the statute of non-claims? o Time period when a person may file claims against the estate o After which, barred forever. o Exception: Counter claims against the estate How do you file a claim? o Present to clerk of court o Together with: Contract Vouchers Affidavit explaining particulars What if solidary? o Can file complete amount against the estate. What if joint? o Only the share. What if there is a debt subject to a mortgage what are the options? o 1. Waive the mortgage and just completely claim from the estate o 2. Judicially foreclose the mortgage You can recover the balance

3. Extra-judicially foreclose the mortgage You cannot recover the deficit/balance What is the nature of a lease contract? o A lease contract is transmissible. So when the wife took over the business of her dead husband, renting certain property, then there was transfer of interest to her. When she failed to pay the rents, no need to go after deceaseds husbands estate; can go after wife. What if the will provided that the heirs should pay the money debts of the estate? o Even if the will stated that the heirs should religiously pay the debt, the creditors must still file claims within the settlement proceedings. There is no getting around Rule 86. X was the administrator of an estate. X hired Atty. Y. X died. Does the claim of Atty. Y for fees survive notwithstanding Xs death? o Yes. The claim of the attorney survives because it is against estate, not the administrator. o A claim against a person, in her capacity as administrator, can be filed at the court where a special proceeding for settlement of the estate is pending. What if the decedent is one of many solidarily liable persons? o Creditor can sue the living surety alone. This is allowed; death of one creditor does not extinguish the suretys liability. What is the rule on lease rentals being assessed after the death of the person? i.e. There were unpaid rentals accrued from April 1993 to December 1998, but the decedent passed away in 1989. Do these claims pass to the estate? o No, because the rentals accrued after his death. o The general rule is that heirs are bound by the contracts entered into by the predecessor-in-interest. o Except if non-transmissible by: 1. Nature 2. Stipulation 3. Provision of law

Actions by and against executors and administrators What are the claims filed against the executor or administrator by name?

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o 1. Recovery of real/personal property o 2. Claim for damages caused by the deceased o 3. All other actions/claims that survive What is the right of the E/A to bring or defend actions? o 1. Recovery or protection of property or rights of the deceased As long as the action survives o 2. May foreclose mortgages When are heirs barred from suing? o When an E/A assumes the trust, heirs cannot file actions to recover title or possession of property, or for damages until there is an order by the court assigning the properties to such heirs or the time for payment of debts has expired o What if there is no E/A appointed yet? Heirs can sue even no administrator has been appointed yet. (Here, cancellation of extrajudicial settlement by other heirs) What are the inequitable situations remedied under Sec. 6 that may be filed by the E/A, heir, creditor, or any individual with interest? o 1. Property of deceased was concealed, embezzled, conveyed away by another person o 2. Person knows deed, bond, contract, conveyance, etc which contains evidence or discloses the right, title, interest, or claim of the deceased to real or personal estate o 3. Person has deceaseds last will and testament: o What may the court do in these situations? 1. Examine the person on oath on such complaint 2. May use interrogatories In writing and filed with clerks office 3. Punish for contempt 4. Commit to prison An heir and an administrator are in conflict as to whether a certain property must be included in the estate. What may the court do? o It may pass upon the issue for inventory purposes. o BUT if there is third person who asserts right to property contrary to decedents, court has no authority to resolve the issue. Separate action instituted to recover the property. Obando: o Co-administrator was removed for presenting forged will. Removal was still on appeal.

Other guy became the sole administrator. Co-admin sued to nullify sale he made. o Dismissed for lacking legal standing, but without prejudice. If his case gets reversed, and his appointment restored, then case may be re-filed without being barred by res judicata. Villegas: o The civil liability that completely arose from criminal liability was extinguished upon death. Cannot file claim against estate. o Remember which claims survive and which dont (culpa criminal doesnt, for instance, but culpa contractual does) What if there is embezzlement before the letters are issued? o The fraudulent person is liable for double the value of the property sold, embezzled, alienated, etc., for the benefit of the estate o The E/A files the action Who may file an action to recover property transferred in fraud of creditors? o The E/A, with the prompting of the creditors (who pay for expenses or give security) o If the E/A refuses to do it, the creditors can do it, if they: 1. Pay expenses of the suit 2. Give bond When is the bond not necessary? o When the property was fraudulently conveyed in favor of the E/A o What is the effect? The creditors obtain a lien over the properties recovered

Payment of debts of the estate The estate sometimes has debts. In this case, how must they be paid? o First, from the personal estate. o Second, from real property not disposed of by will. o Third, retention to meet contingent claims Kept for within 2 years after the expiration of period of claims by creditors

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After 2 years, distribute property to heirs. But the creditor, if the action ripens, may still go against the heirs (not the estate anymore) What is the time to pay the debts? o Not exceeding one year in the first instance Can it be extended? o Yes, for not more than six months What if the estate is insolvent? o Follow concurrence and preference of credits When the estate of partner has become insolvent, how must claims against his separate property be prioritized? o 1. Those owing to separate creditors o 2. Those owing to partnership creditors o 3. Those owing to partners by way of contribution

Sales, mortgages, other encumbrances Can the court authorize sale/mortgage/encumbrance of real property? o Yes. o When? 1. Personal estate is not sufficient to pay the debts. 2. Sale of personal property may injure business or estate and the testator did not make provision for payment of the debt (for both) How can an interested person stop the court order granting authority to sell? o Issue a bond to cover for claims of the creditors When can there be sale of real or personal property upon application of the E/A, even when it is not for the payment of debts, legacies, or expenses? o 1. When it is shown that it would be beneficial to the heirs, devisees, legatees, and other interested persons o 2. To pay debts or legacies in another country where it shown that the estate in the other country is not sufficient in a probate proceeding in another country What is the procedure involved?

1. E/A files petition to court setting forth debts due, legacies, or expenses, character of property, plus facts showing sale is beneficial o 2. Court fixes time and place for hearing With notice to interested persons Optional: publication or otherwise o 3. Court may require E/A to give additional bond conditioned on accounting of proceeds of sale o 4. Court authorizes sale, mortgage, or encumbrance either private or public o 5. Record in ROP Court, upon claim, may authorize conveyance of property to: o 1. A person who contracted with deceased o 2. Beneficiary where the deceased was a trustee Sale of real property must it be with consent of court? o Any disposition of estate property by an administration or prospective heir pending final adjudication needs court approval o Unauthorized disposition can be annulled by the probate court without need for separate action o Can the intestate/probate court execute its order annulling the sale? It can. No need for separate court.

Distribution and partition When is there distribution? o No distribution shall be allowed until payment of debt, funeral expenses, giving of allowance to widow, admin expenses, estate tax, etc. Pay debts and expenses of administration Court doesnt motu propio order distribution o Heirs/person requesting for distribution may file a bond Palicte o Heir can redeem properties that were sold to cover debts of the decedent. o But she cannot register them in her name yet, because this would be tantamount to distribution. Who will pay expenses of administration?

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o o Reyes o

E/A from the leftover of the property OR heirs/distributees, from their shares

Barretto by will, left fishpond to wife Maria and who he thought was his daughter, Salud. They executed project of partition, which divided the fishpond between them. Therefore, when Maria died, the probate court made a judgment that Salud was not a legitimate daughter. Now, project of partition is challenged; claim is that it is an illegal compromise on her civil status. Held: Valid. Not a compromise, because there was no litigation to be prevented. The distribution was also based on will, and not the partition per se. And the will prevails here. o When the court approved the project of partition, can it still be contested? No. Normally, can be challenged before the order of distribution Crucillo v. IAC o Oral partition amongst heirs is valid. But just see the rules on w/n it binds third parties o Proof: heirs exercised ownership over their shares De Leon o Question is over inclusion of certain properties decedent purportedly gave to his children inter vivos in inventory. RTC issued an order stating those in the Motion for Collation are subject to inclusion. Order was challenged, by Petitioners stating that these properties were already titled in their name and could not collaterally be attacked. CA: cannot challenge Order for Collation because it has become final. HELD: CA erred. The order is merely for inclusion in inventory which is provisional. It is interlocutory. To talk about collation is premature since there was no indication that debts have been paid and the estate is ready for distribution.

Escheat Who can institute actions for escheats? o The Sol-gen on behalf of the Republic. Where does the solicitor general file the action?

In court of province of last residence Or if outside Phils., where he has property What court? The provision says CFI, so now its the RTC When will the hearing be held? o Hearing scheduled not more than 6 months from petition What is the publication notice? o Publish 6 consecutive weeks What is proved in the hearing? o Prove that there is no heir Where does the property go? o Personal property to municipality or city where he last resided o Real property municipality or city where it is located o What if the deceased never resided in the Philippines? Whole estate assigned to municipality or city where it is located o Purpose of escheated estate: 1. Public school in city/municipality 2. Charitable institutions and centers in city/municipality What is the other option? o Can establish permanent trust If you are an heir up until when can you still recover an escheated property? o Five years from the date of such judgment o Can a donee (but not an heir) recover the property? Yes, he is an interested party, because he claims a right to the escheated property. He may appear or oppose petition for escheat. What is the effect of a judgment in escheat? o Conclusive against all persons with actual or constructive notice Tan: o Solicitor General is now the one that files the complaint but then, allow City (old Rules) o 39 years of absence without hearing of that person: enough can presume death

o o o

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Guardianship Where do you institute petition for guardianship? o Where the minor or incompetent is found o Ex. Judge from La Union cannot take cognizance of case over incompetent living in Pampanga In what particular court, if the person is a minor (over person or property)? o Family courts For incompetent (not a minor) as regards property: o Follow 300K/400K usual rule o This shows if MTC or RTC If over person of incompetent (not a minor) regardless of amount of property: o Always RTC Who can petition? o Relative, friend, other person, or DSWD o Can the minor himself do so? Yes, as long as he is at least 14 years old What are the grounds? o 1. Death, continued absence, incapacity of parents o 2. suspension, termination, deprivation of parental authority o 3. remarriage of surviving parent, if latter is unsuitable to exercise parental authority o 4. best interest of minor Must a parent still apply for guardianship? o If the property of the child exceeds P50K you need to petition for guardianship over the property When can the guardian sell or encumber the property of the ward? o 1. The property of the estate is insufficient to maintain the ward and his family o 2. For education of the ward o 3. For the benefit of the ward Need not explicitly state that the alienation is for the benefit of the ward, but one can show it by implication by establishing that it is for the wards benefit o How long does the order of sales effectivity last? 1 year from the order o What else can the proceeds of the sale be approved for?

Investment of the same Who is preferred to become the guardian? o The natural parent of the ward Parent is preferred over other guardians unless there is good reason shown. Mere allegation of moral unfitness is not valid per se o In default 1. Surviving GP; if several, court chooses 2. Older brother or sister over 21 unless unfit/DQ 3. Actual custodian over 21 unless unfit/DQ 4. Any other person, in courts sound discretion Procedure: o 1. Petition o 2. Time and place of hearing set o 3. Give notice to all interested persons o 4. Hearing conducted o Is publication needed? No. This is not an affair that the public should be apprised of. What happens before hearing? o Social worker does case study on child Who are incompetents? o 1. Suffering from civil interdiction o 2. Hospitalized lepers o 3. Prodigals o 4. Illiterate deaf and dumb Ex. Grade 3, mind of 6 year old, illiterate shows incompetence o 5. Unsound mind o 6. Those who cannot without outside care take care of their property To what situation can a spouse apply for guardianship over property of the other spouse? o Family Code article where the spouse automatically assumes administration over his/her spouses property only applies to absent, separated-in-fact, abandoned spouse o DOES NOT apply to incapacitated spouses (here, stroke) What is the extent of guardianship powers? o Power of guardianship does not include alienation

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o But heirs receipt of proceeds is deemed a ratification Can the guardianship court pass upon issues of ownership? o No. The guardianship court cannot pass upon issues of ownership. It is the duty of the guardian to bring the proper action. What are the conditions of the bond of the guardian? o 1. Inventory within 3 months of appointment or discovery of property o 2. Faithfully execute duties of trust for wards best interest o 3. Render account: a) upon order of the court or when required by the rules, and b) upon termination of guardianship Contrast with settlement of estate: in settlement, account is every one year o 4. Perform all orders of the court What are the duties of the guardian? o 1. Settle accounts of the ward o 2. Demand, sue for, and receive all debts due May compound or discharge, on receiving fair and just dividend of the estate and effects o 3. Appear and represent the ward in actions and special proceedings Can the guardian join in partition proceedings of property held by the ward as a joint or co-owner? o Yes, but after hearing only, with notice to the relatives of the ward and upon establishing necessity and propriety of the action. When is the guardianship required to render an inventory to court? o 1. 3 months from appointment o 2. 3 months from discovery of property not included in the original inventory o 3. Inventory and account from application of an interested person Grounds to terminate guardianship? o 1. Became insane or otherwise incapable of discharging his trust o 2. Wasted or mismanaged the estate o 3. Failed to render account or return for 30 days o 4. Resigned from position

Trustees Who is a trustee? o Can be made to carry in effect the provisions of a will or a written instrument o Appointed/confirmed in the probate court (if carrying out a will) or the RTC where the property is located (for written instrument) When can the court appoint a new trustee under a will or under a written instrument? o 1. When the testator in aw ill omitted to appoint a trustee in the Philippines, and such appointment is necessary to carry into effect the wills provisions o 2. When a trustee under a written instrument declines, resigns, dies, or is removed before the object of the trust is accomplished o What is the power of the new trustee? Same as the powers of the original trustee What if a trustee for property in the Philippines is appointed by an instrument abroad? o Must apply for appointment as trustee before the local courts, or else, the trust can be declared vacant What are the conditions of the bond? o 1. Make an inventory of all real and personal property belonging to him as trustee o 2. Faithfully discharge trust according to law, will, or instrument o 3. Render account at least once a year, and upon court order o 4. Upon expiration of trust, settle accounts in court and deliver property What are the requisites for the removal and resignation of the trustee? o 1. Petition by party beneficially interested in the trust o 2. Notice to the trustee o 3. Hearing What are the grounds for removal and resignation of the trustee? o 1. Essential to interest of petitioners o 2. Became insane o 3. Incapable of discharging the trust or is unsuitable therefore o 4. Resignation

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May the trustee sell the property? o Yes, but only upon court approval and after proving that it will best effect the objects of the trust

Adoption Distinguish qualifications of a domestic adopter, from an alien adopter under RA 8552, from an alien adopter under ICAA: o Common qualifications of the adopter [Capacity] 1. Legal age 2. Full civil capacity and legal rights 3. At least 16 years older than the adoptee, except: Adopter is biological parent Adopter is spouse of adoptees parent [Personal characteristics] 4. GMC and not convicted of crime involving moral turpitude 5. Emotionally and psychologically capable of taking care of child 6. In a position to provide care/support o Qualifications of an alien adopter Same as common qualifications, plus: 1. Country has diplomatic relations with the Philippines 2. Must be living at least 3 years in the Philippines before adoption application and maintains residence until the adoption decree is entered. EXCEPT: 1. Former Filipino seeking to adopt relative th within 4 degree of consanguinity 2. Married to Filipino spouse and seeking to th adopt the latters relative within 4 degree of consangunity 3. Married to Filipino spouse and seeking to adopt the latters legitimate son/daughter 3. Certified by diplomatic or consular office that he has legal capacity to adopt under his laws

4. At least 27 years old and 16 years older than adoptee, except: Adopter is biological parent Adopter is spouse of adoptees parent o Qualifications for adopter under inter-country adoption act: Same as common qualifications, plus: 1. Country has diplomatic relations with the Philippines 2. At least 27 years old and 16 years older than adoptee, except: Adopter is biological parent Adopter is spouse of adoptees parent 3. If married, the spouse must jointly file for adoption 4. Has capacity to act under national laws and undergone counseling in the Philippines 5. Agrees to uphold UNCRC, Philippine Law, and R&R of Inter-country adoption act Where to file application for adoption? o Domestic: RTC where adopter resides o Inter-country: RTC where adoptee resides Who must adopt? o Husband and wife, jointly o What are the exceptions? 1. Spouse adopting LC of the other 2. Spouse adopting own child Other spouse must consent 3. Spouses legally separated What are the legal effects of adoption? o 1. All legal ties between the biological parents and the adoptee are severed Except when it is the biological parent that is the adopter o 2. The adoptee becomes the LC of the adopter o 3. Adopter and adoptee obtain reciprocal successional rights (just them) When can adoption be rescinded? o 1. Repeated physical or verbal abuse by adopter o 2. Attempt on life of adoptee

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o 3. Sexual assault or violence o 4. Abandonment/failure to comply with obligations Who may rescind the adoption? o Just the adoptee. The adopter can never rescind the adoption. What is the effect of rescission? o 1. It restores the parental authority of the biological parents, if the adoptee is still a minor or incapacitated o 2. The amended birth certificate is cancelled o 3. Rights to succession are restored, but not as far as there are already vested rights When is inter-country adoption allowed? o Only as a last resort, and when it is in the best interest of the child.

Habeas corpus, Writ of Amparo When can you file a Petition for Habeas Corpus? o There must be 1. ARREST and 2. DETENTION o What if it is mere disappearance? H.C. does not apply File a criminal case What must be the nature of the arrest/detention? o It must be unlawful or illegal. It cannot be pursuant to a valid arrest/detention. Detention in violation of the right to speedy disposition of cases, and the petition for such is denied by the court, what can you do? o File petition for Writ of H.C. What is post-conviction petition for HC? o Under rules on DNA evidence, even after conviction, if the testing shows that there is no basis for the conviction/detention, you can file petition for HC Where can WHC be filed? o RTC, CA, or SC What is WHC on custody of minors? o Not a regular WHC. Unlike in ordinary WHC where there is no pre-trial, there is pre-trial here. o See example below. o X married Y, but were separated in fact. X requested Y for some time with their child Z. Y allowed, but X never returned Z. What is the remedy? Habeas corpus on custody of minors. What is the difference between preliminary citation and a peremptory writ of HC? o Preliminary citation: requires respondent to appear and show cause why the peremptory writ should not be granted o Peremptory writ: unconditionally commands the respondent to have the body of the detainee produced before the court When is a WHC disallowed or discharged? o 1. Person is lawfully detained or convicted

Case study: There was a child who was left outside of the house of a childless couple and having noticed that no one is claiming the child, the couple adopted the child. But they secured a birth certificate and filled in the childs details (simulation of birth), without applying for legal adoption. The child grew up and when she applied for a visa to the US, she was denied because she was found to not be the natural child of the mother (who is sterile). What are implications and what actions must be taken to correct the situation? 1. Petition for correction/cancellation of entries, because the birth certificate is false o Where do you file it? The place where the entry was made or recorded o Who are the parties; who are impleaded? Only the civil registrar (under the ROC) Under jurisprudence, include the child as well and the declared parent of the child, and those whose hereditary rights are affected (ex. Grandparents) 2. Get certification that the child was neglected or abandoned o Do you need a judicial declaration that the child was neglected or abandoned? o NO. You just need a certificate from DSWD from an administrative proceeding. (Take note of this; new law and never asked in the Bar.) 3. Legal adoption

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2. Jurisdiction appears after the writ is allowed; cannot use defect in the process, judgment, or order as reason to discharge the writ What is the Writ of Amparo? o Also instituted in the RTC, CA, SC o Can be filed at any time of day or night o Does not just extend to actual or committed acts, but also to threatened acts o Who can file it? Not just the victim or family members Extends to religious institutions or NGOs What is the Writ of Habeas Data? o Also instituted in RTC, CA, SC Contents of petition for HC? o 1. Person imprisoned on whose behalf petition is filed o 2. Officer or person under whom he is restrained or imprisoned; if unknown, officers assumed appellation; person upon whom writ is served is deemed the person intended o 3. Place where he is detained if known o 4. Copy of commitment or cause of detention of the person if it can be produced without impairment of efficiency of the remedy; if without legal authority state it Return of WHC: o 1. Whether or not he has the party in his custody or power, or under restraint o 2. If he does, the authority and cause thereof with a copy of the writ, order, or process o 3. If the person cannot be produced, the nature or gravity of sickness or infirmity which is the reason why he cannot be produced in court without danger o 4. If transferred to another person: to whom, for what cause, when, and under what authority Contents of petition for amparo? o 1. Personal circumstances of petitioner o 2. Name and personal circumstances of respondent, or description/assumed appellation o 3. Right to life, liberty, security threatened by respondent (affidavit detailing how) o 4. Investigation conducted, and identity of investigator

5. Actions and resources taken by petitioner to determine fate of aggrieved, and identity of respondent o 6. Relief prayed for Return of WOA, within 72 hours: o 1. Lawful defenses to show no violation o 2. Steps or actions taken by the respondent to determine fate of aggrieved party and persons responsible o 3. All relevant information in respondents possession o 4. If public official or employee, the actions taken to: a) verify identity of aggrieved party b) recover and preserve evidence c) identify witnesses d) determine cause, manner, location, time of death or disappearance e) indentify and apprehend the person or persons involved f) bring suspected offenders to court o Is a general denial of allegations allowed in WOA? No, unlike in Habeas Corpus. o What is the omnibus waiver rule in WOA? All the defenses not raised on the return are deemed waived What is the consequence of failure to file return? o Ex parte hearing Can there be institution of separate civil, criminal, or administrative action notwithstanding a petition for WOA? o Yes. What is the effect of filing a criminal action? o The petition for WOA is always consolidated with it, whether filed ahead or later What is the quantum of proof required for petition for WOA? o Substantial evidence o On the defense? Private persons: ordinary diligence in duties Public officials: extraordinary diligence in duties Habeas Corpus To all cases of illegal confinement Amparo Any person whose right to life, liberty, Habeas Data same as amparo, but the

Remedy

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Petitioner

or detention: 1) person is deprived of liberty, or 2) rightful custody of any person withheld from the person entitled thereto Party for whose relief it is intended, by some other person on his behalf

and security is violated/threatened by unlawful act or omission of public official, public employee, or private individual/entity Aggrieved party, or any qualified person or entity in the order in sec. 2: (1. Immediate family member, 2. Relative th to 4 degree of consanguinity, 3. Concerned citizen, org, assoc, etc.)

person must be engaged in 1) gathering, 2) collecting, 3) storing data or information regarding the person In general: aggrieved party Except for EJ killings and enforced disappearances: 1) immediate family, 2) in default, relative th to 4 degree of consanguinity N.B. no concerned citizen, etc. SC, CA, or SB: Manila RTC: 1) where petitioner resides, 2) where defendant resides, or 3) has J over place where data is gathered, etc.

issuance Why is it like this? This way, its not dependent on the filing of the return If cannot do it personally, then substituted service

Service

Return

Served on person to whom it is directed; if cannot be found or not with custody, then to person with custody Signed and sworn to if prisoner not produced N.B. no period specified for return Clerk who doesnt issue writ. Person fails to make return, makes false return, refuses to deliver person demanding (within 6 hours) the copy of warrant or order of commitment 1) Court may adjourn for good cause and make order for safe keeping of person If person cannot be produced due to grave illness, court must be satisfied that

Same as WOA

Verified written return Within 5 days from service, without extension Clerk who doesnt issue writ. Deputized person who doesnt serve the writ. Person fails to make return, makes false return, or disobeys/resists lawful court order.

Same as WOA

Penalties

Same as WOA

Venue

SC, CA, or SB RTC: 1) Plaintiffs residence 2) Defendants residence 3) Where nonresident defendant is found

SC, CA, or SB: Manila RTC where the violation occurred, or any of its elements N.B. if the writ is issued by a higher court, the writ is returnable to it or any of the lower courts (e.g. for SB, either there or RTC. For SC, either CA, SB, or RTC) When in its face, ought to issue immediately Not later than 7 days from issuance

Interim reliefs

2) Same as Amparo, but within 3 days Not later than 10 days from

Issuance of writ Summary hearing

Immediately once it appears Upon filing of return

1) Temporary protection order 2) Inspection order (5 days) 3) Production order (of documentary or object or electronic evidence) 4) Witness protection order N.B. 2 and 3 are both available to

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Judgment

he cannot be produced without danger Discharge from confinement

respondent as well

Judgment within 10 days. If proved by substantial evidence, grant reliefs as applicable. Standard of evidence? Substantial evidence Diligence required for defense? Private person: ordinary diligence Public official: extraordinary diligence Rule 45 petition for review on certioriari with peculiar features: 1) Appeal may raise questions of law, fact, or both 2) Appeal 5 working days from notice of judgment 3) Same priority as habeas corpus cases Archiving rule: If court cannot proceed due to

Same as Amparo, but in addition, the judgment must be enforced by sheriffs or court officers within 5 days

failure of petitioner or witnesses to appear due to threat to lives, it should NOT dismiss the petition; just archive the case. Revival rule: Court conducts periodic review of archived cases and revives them if they can proceed. Dismiss case with prejudice if 2 years have lapsed from archival. Allowed When there is criminal case, cannot file for writ. But reliefs allowed. Always consolidate with the criminal action

Separate actions

Same as WOA

Appeal

Ordinary appeal, 48 hours from notice of judgment

Same as WOA

Change of name (103) When can you ask for change of name? o 1. Name is ridiculous, dishonorable, extremely hard to pronounce o 2. Change will avoid confusion o 3. One has been continuously known as that name o 4. Surname causes embarrassment and the desire to change it is not for a fraudulent purpose o 5. Consequence of change of status Can a person have the childs Filipino middle name dropped for the purpose of integration with the Singaporean community? o No. Where to file for change of name?

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Surname: always in the courts First name: Local civil registrar: If clerical If any of three grounds in section 4 of RA 9048 Courts: Everything else What to file? o 1. That petitioner is a bona fide resident of province where petition was filed for at least (3) years prior to the date of such filing o 2. Cause for which change of petitioners name is sought o 3. Name asked for RA 9255 grounds by which an illegitimate child can use the fathers surname: o 1. Filiation recognized by father in civil register o 2. OR Admission in public document or private writings o N.B. But the father can institute action for non-recognition anytime during his lifetime

o o

o o

Cagandahan case: natural change in sex allowed change of sex and name Silverio case: sex change procedure did not allow 103 Change of name 108 Correction or cancellation of entries in civil registry Change or corrections in civil entries (substantial) RA 9048 Clerical Error Act

Name of law

Subject matter

Change of full name (substantial correction)

Who may file

Person desiring to change name

Venue

Cancellation or correction of entries in the civil registry (108) Notice given to: o LCR o All persons interested How long is publication? o 3 consecutive weeks (once a week) Tenor of proceedings: Summary, but not if there are substantial changes: adversarial o For instance, if it is nullity or annulment, then it must be in adversarial proceedings o But see RA 9048 Removed from ambit of 108 typographical and clerical errors, and change of first name/nick name under the three stated grounds Differentiate sex change from intersex persons and implications on change of name:

Petition contents

Grounds

RTC of province where petitioner has resided the past 3 years; City of Manila: Juvenile and Domestic Relations Court 1) petitioner is bona fide resident (3 years) 2) cause 3) name asked for 1) name ridiculous, tainted with dishonor, extremely difficult to write/pronounce 2) consequence

Person interested in any matter concerning recorded civil status of person RTC of city or province where the registry is located

Change of first name, nick name, and civil entries (typographical or clerical errors) Person with direct and personal interest in correction

SAME as 103

1) LCR of city or municipality where record is 2) LCR of place where interested party is residing 3) Phil. Consulates 1) facts necessary to establish merits 2) particular erroneous entry

Good and valid grounds

1) Name ridiculous, tainted with dishonor, extremely difficult to write/pronounce 2) new first

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Proceeding

of change of status 3) necessity to avoid confusion 4) continuous used and known by Filipino name, unaware of alien parentage 5) sincere desire to adopt Filipino name to erase signs of alienage Judicial

name or nickname habitually and continuous used, and publicly known 3) avoid confusion

Summary (but adversarial if there are substantial changes) Once a week for 3 consecutive weeks in newspaper (notice of hearing) Administrative

1. For the declaration of a representative or 2. Declaration of absence and appointment of a trustee or administrator Who may file? o 1. Spouse present o 2. Testate heirs (must present an authentic copy of a will) o 3. Intestate heirs o 4. With interest over absentees property hinged on suspensive condition of death When can it be filed? o 1. Two years from disappearance and without news about absentee o 2. Five years, in case he left an administrator in charge of his property

o o

Appeal Once a week for two consecutive weeks (publish affidavit) Posting Appeal can be taken from what orders or judgments in settlement of estates? o 1. Allowance/disallowance of wills o 2. Determines who are the lawful heirs of a deceased person or distributive shares o 3. Allows/disallows a claim, or claims presented on behalf of the estate to offset a claim against it o 4. Settlement of account of executor/admin/guardian o 5. Final determination in lower court of rights of the party appealing o 6. Final order or judgment rendered in the case, affecting substantial rights of appealing person, unless it is an order granting/denying MBT/MR Can the appointment of a Special Administrator be subject of appeal? o No. What is the mode of appeal? o Record on appeal Venue Settlement of Resident: where Reglementary period Record on Publication rule EJ settlement: 3

Notice

Once a week for 3 consecutive weeks in newspaper (notice of hearing) Not 30 days prior to election; not within 4 months of last publication of notice CA

Appeal

CA

Civil Registrar General

Family home Do you need a judicial declaration of a family home? o No more. Its automatically constituted, under the Family Code.

Absentees What is the purpose of the rule?

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estate

residing; Non-resident: where property is

appeal 30 days

weeks pub (of fact of settlement) Summary settlement: 3 weeks pub (of time and date of hearing) [3 weeks successively for proving will] Postal service 20 days before hearing, personal service 10 days before hearing Claims: 3 weeks successively, posted: 4 public places in province, 2 in municipality Once a week for 6 weeks (hearing though is at least 6 months after order of court) None Adoption

Habeas corpus

Property of incompetent not minor follow 300k/400k rule Venue: Family court of the province or city where the adoptive parents reside SC, CA, SB Plaintiffs residence Defendants residence OR Non-resident defendant, where property found Manila: SC, CA, SB RTC with jurisdiction over where violation or any of its elements happened Manila: SC, CA, SB Plaintiffs residence Defendants residence OR RTC with jurisdiction where data is gathered, collected, stored

Record on appeal 30 days

None

Ordinary appeal, 48 hours from notice

None

Amparo

Rule 45, but can raise issues of law and fact, and within 5 days

None

Escheat

Court in province of last residence Non-resident: where estate is located Person of minor in Family court where minor resides ; Property of minor same Person of incompetent, not minor RTC of residence

Record of appeal 60 days

Habeas data

Guardianship

Record on appeal 30 days

Rule 45, but can raise issues of law and fact, and within 5 days

None

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Change of name

RTC of plaintiffs residence for 3 years Manila: Juvenile and Domestic relations court RTC with jurisdiction over place of registry LCR where record is, LCR of residence, or Phil. consulate if nonresident

Record on appeal

Once a week for 3 weeks

Record on appeal Civil Registrar General Once a week for 3 weeks Once a week for 2 weeks (affidavit published)

Correction or cancellation Clerical or typographical error 9048

ENVIRONMENTAL CASES

What is the scope and applicability of the rule? o Involves all civil, criminal, and special proceedings cases pending before courts involving enforcement and violation of all environmental and related laws o Ex. Forestry code, Water code, Sanitation code, LLDA act, Toxic substances and hazardous waste act, IPRA, Mining act, Fisheries code, Clean Air act, Chainsaw act, etc.

Civil Procedure What is the rule on TROs? o Except for the SC, no court can issue a TRO or preliminary injunction against lawful acts of government agencies enforcing environmental laws What happens in pre-trial? o The parties are under oath in all PTCs. o The judge must exert best effort to arrive at a settlement of the dispute. o What is a consent decree?

It approves the agreement made by the parties in accordance with law, morals, public order, and public policy to protect right to balanced and healthful ecology What are the prohibited pleadings and motions? o 1. Motion to dismiss complaint o 2. Motion for bill of particulars o 3. Motion for extension of time to file pleadings Except to file an answer, where at most 15 days can be given o 4. Motion to declare defendant in default o 5. Reply and rejoinder o 6. Third party complaint What is a Temporary Environmental Protection Order (TEPO)? o It is issued when the matter is of extreme urgency and applicant will suffer from grave injustice or irreparable injury o Who may issue it? Executive judge of multi-sala court or presiding judge of a single-sala court o How is it issued? Ex-parte o How long is it effective? 72 hours from date of receipt, unless there is summary hearing within the period to determine whether the TEPO should be extended until the end of the case o When can a TEPO be dissolved? If it appears after the hearing that its issuance or continuance would cause irreparable damage to the party enjoined, and the applicant can be compensated adequately How is the applicant compensated? The enjoined party has to file a bond What reliefs can the court grant in a citizen suit? o 1. Proper reliefs including protection, preservation, or rehabilitation of the environment o 2. Payment of attorneys fees, costs of suit, litigation expenses o 3. Require violator to submit program for rehab or restoration of the environment

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Costs borne by the violator 4. Require violator to contribute to a special trust fund for that purpose What is a PEPO and writ of continuing mandamus? o It is a permanent Environmental Protection order. The court can convert a TEPO into a PEPO. o The court can also issue a writ of continuing mandamus which requires performance of certain acts effective until judgment is fully satisfied o How can the court monitor this? Can require continuing reports to be filed What is a SLAPP? o It is a Strategic Lawsuit Against Public Participation a legal action filed to vex, harass, exert undue pressure, or stifle any legal recourse that a person, institution, or the government has taken or is taking to enforce environmental laws o What is the relevance of this? When a suit is filed against the aforementioned persons, they can launch the defense that the suit is a SLAPP and the court will have the plaintiff prove that its not 5 days for plaintiff to respond, and summary hearing within 15 days from comment or expiration of the 5 day period o

Special proceedings What is a Writ of Kalikasan? o Remedy available to natural/juridical person or entity authorized by law, PO, NGO, or registered public interest group, on behalf of persons whose right to a balanced and healthful ecology has been violated or threatened with violation involving environmental damage of such magnitude as to prejudice life, health, or property of inhabitants in two or more cities or provinces o Contents of the petition? 1. Name and personal circumstances of petitioner 2. Name and personal circumstances of respondent, or his assumed appellation

3. A) Environmental law, rule, or regulation violated or threatened to be violated, and B) the act or omission complained of, and C) the environmental damage of such magnitude as to affect life, property, or health of inhabitants in two or more cities or provinces 4. Evidence to be presented 5. CNFS 6. Reliefs prayed for o Where filed? CA or SC o What are the prohibited pleadings and motions? 1. MTD 2. Motion for extension of time to file a return 3. Motion for postponements 4. Motion for BOP 5. Counterclaim or cross-claim 6. Third-party complaint 7. Reply 8. Motion to declare respondent in default o What are the discovery measures that a party may file in a verified motion? 1. Ocular inspection 2. Production or inspection of documents and things What are these for? To establish magnitude of the violation or threat What is a writ of continuing mandamus? o See above this can also be a relief under special proceedings to enjoin a government agency or instrumentality to perform in connection with a law preserving or protecting the environment

Criminal procedure Who may file? o Any offended party, peace officer, or public officer charged with enforcement of environmental law Rule on institution of criminal and civil actions?

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Same rule as usual; civil is deemed filed along with the criminal unless waived, reserved, or filed ahead When can there be arrest without warrant? o 1. In flagrante delicto o 2. Offense has just been committed and he has probable cause to believe based on personal knowledge that the person arrested just committed it Does the presumption of regularity apply here? Yes, for individuals deputized by government to enforce environmental laws What is the procedure for custody and disposition of seized items? o In accordance with laws or rules by the government agency concerned. If none, follow the default rules: o 1. Inventory and photograph where seized o 2. Submit to court within 5 days of issuance of search warrant or from seizure if warrantless arrest o 3. Auction sale of seized items upon motion of any interested party Notice to accused, person from whom items were seized, owner thereof, government agency concerned Posted in three conspicuous public places in the city or municipality where seized Proceeds held in trust and deposited with authorized government bank until disposition What is the rule on bail? o 1. Bail filed where case is pending o 2. If the judge is unavailable, with any RTC or MTC judge in the province, city, or municipality o 3. If arrested in any city, province, or municipality other than where the case is filed can file bail with any RTC of said place, or if none, with any MTC judge What happens in arraignment? o It is set within15 days from acquisition of jurisdiction over the accused, with notice to the public prosecutor and offended party, or government agency that it will enter into pleabargaining on the date of arraignment o What happens when the prosecution and offended party agree to the plea bargain of the accused? 1. Court issues order containing the plea-bargain

2. It then receives evidence on the civil aspect of the case, if any 3. It renders and promulgates judgment of conviction, including civil liability for damages What happens in pre-trial? o 1. Set within 30 days from arraignment May refer to branch COC for preliminary conference at least 3 days before pre-trial o 2. During pre-trial, judge: Places parties under oath Adopts minutes of preliminary conference and confirms markings of exhibits, admission of documents, etc. Scrutinizes the information and statements in affidavits to determine: Courts territorial jurisdiction as re offenses Qualification of expert witnesses Amount of damages Defines factual and legal issues Asks parties to agree to specific trial dates Requires parties to submit to the COC the witnesses to be subpoenaed Considers modification of trial order if there is a lawful defense interposed o What is the rule on questions? All questions and statements must be directed to court o What is the rule on admissions and agreements, to bind accused? Must be signed by accused and counsel o When is the PTO issued? Within 10 days from termination of pre-trial What is the rule on subsidiary liability? o When the accused is convicted and subsidiary liability is allowed by law, the court may, upon motion of person entitled to recover, enforce subsidiary liability against a person or corporation subsidiarily liable under the RPC

Evidence

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What is the precautionary principle? o When there is lack of full scientific certainty in establishing a causal link between human acts and environmental damage, the burden of proof that it is not harmful falls on those taking the purportedly harmful action or policy o What is given the benefit of doubt? Constitutional right of people to a balanced and healthful ecology o What are considered in applying the precautionary principle? 1. Threats to human life or health 2. Inequity to present or future generations 3. Prejudice to the environment without legal consideration of the environmental rights of those affected What is the rule on documentary evidence? o 1. Photographic, video, or similar evidence of events, acts, transactions of wildlife, by-products, or derivatives, forest products or mineral resources subject of a case are admissible if authenticated by the person who took the photo, a person present during its taking, or some other person competent to authenticate it o 2. Entries in official records in the performance of duty of a public officer are prima facie evidence of the facts stated therein

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