MIRANDA NOTES BAR 2019 - Remedial Law 1

Rule 11 : When To File Responsive Pleadings

When you receive the summons, you count one but today is excluded and of
course the last day is included. And if the last day is the next working day.
A: It is done on the next business day. Here, there is an automatic extension.
“The day the act which caused the interruption is excluded in the computation
of t tie period.”
Foreign Private Juridical Entity
Answer to an Amended Complaint
Therefore, if he wants to answer the amended complaint, he has 10 days to
do it and not 15 days.
The 10-day period will be counted from service of the order admitting the
amended complaint, not from the service of the amended complaint because
the same may not be admitted.

Q: Now, what is the period to answer when the defendant is a foreign You wait for the order of the court admitting the amended complaint.
private corporation doing business in the Philippines?
A: It DEPENDS:
a.) When the foreign corporation has a designated resident agent, So, there are two (2) periods to file an answer to an amended complaint.
the summons shall be served to the resident agent, and he has
15 days to answer, just like any defendants in Section 1. So the principle is: if no answer is filed to the amended complaint, the answer
to the original complaint automatically serves as the answer to the amended
b.) On the other hand, if the foreign corporation does not have any complaint and therefore the defendant cannot be declared in default.
designated resident agent in the Philippines, then under the
Corporation Code, the summons shall be served to the General Rule: He can be declared in default on the counterclaim. He has still
government official designated by law to receive the same, who standing to prove his cause of action in the main case but he loses his standing
is duty bound to transmit it to the head office of the corporation to defend himself in the counterclaim.
abroad. And the corporation now has 30 days from receipt of
summons to file its answer. Exception: when the counterclaim is so intertwined with the main action –
Q: Now, who is this proper government official designated by law to receive they are so intertwined that if the plaintiff would answer the counterclaim, it
summons? would only be a repetition of what he said in his complaint. In this case, even
A: Generally, it is the Secretary of the Department of Trade and Industry. if the plaintiff will not answer, he cannot be declared in default.
But for some types of business, the law may designate any other
official. Like the foreign corporation to be sued is a foreign insurance
company (e.g. Sun Life of Canada), under Insurance Code, you serve it
to the Insurance Commissioner. Or if it is a foreign bank which has
branch here, you serve the summons to the Superintendent of the Bangko
Sentral ng Pilipinas.
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If you want to file a reply, you have ten (10) days to file. But as a general
rule, the filing of a reply is optional.
A supplemental complaint may be answered in ten (10) days. The
computation is again from notice of the order admitting the same.
Suppose I will not answer the supplemental complaint? The same principle –
the answer to the original complaint shall serve as the answer to the
supplemental complaint. So it follows the same principle as the amended
complaint in the second paragraph of Section 3.
S11: The period to file is 15 or 10 days, but the general rule is 15 days.
Q: Now, is the 15-day period extendible?
A: YES, upon motion and on such terms as may be just, the court may
extend the time to plead.
Q: Now what happens if the lawyer fails to file such a motion? So
naglampas na yung 15 days. And then on the 18th, he will now file an answer.
Practically out of time na yan because the 15-day period already expired and
he did not ask any motion for extension. Now what should the lawyer do?
A: MOTION TO ADMIT LATE ANSWER
SUMMARY OF TIME TO FILE RESPONSIVE PLEADINGS
Rule 12 : Bill of Particulars
BAR QUESTION: Suppose a complaint is ambiguous, uncertain, indefinite
or vague, can the defendant file a motion to dismiss?
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A: NO! A complaint cannot be dismissed simply because it is vague,
1.) Answer 15 days
2.) Answer of a private foreign corporation
a.) with designated Philippine representative 15 days
b.) no designated Philippine representative 30 days
3.) Answer to an amended complaint
a.) if as a matter of right 15 days
b.) if as a matter of judicial discretion 10 days
4.) Answer to counterclaim or cross-claim 10 days
5.) Answer to third (fourth, etc.) party complaint 15 days
6.) Reply 10 days
7.) Answer to supplemental complaint 10 days
ambiguous. (Pañgan vs. Evening News, L-13308, Oct. 29, 1960) The correct
remedy is for the defendant to file a motion for bill of particulars, which will
ask for more details on these vague portions of the complaint. (Amoro vs.
Sumaguit, L-14986, July 31, 1962)
“The proper office of a bill of particulars is to inform the opposite party
and the court of the precise nature and character of the cause of action
the pleader has attempted to set forth, and thereby to guide his adversary
in his preparations for trial and reasonably protect him against surprise
at the trial. It complements the rule on pleadings in general, that is, that
the complaint should consist of a concise statement of the ultimate facts.”
“Its primary objective is to apprise the adverse party of what the plaintiff
wants — to preclude the latter from springing a surprise attack later.”
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What is sought to be remedied are vague and ambiguous statements of
ultimate facts. But you cannot used it to fish for evidentiary matters.
Evidentiary facts cannot be the subject of a motion for a bill of particulars.
I believe it is fair for the defendant to compel the plaintiff to reveal the details
of his ultimate facts but not under Rule 12. You better avail of the modes of
discovery under Rule 23, depositions, request for admission, etc. But you
cannot convert Rule 12 into a modes of discovery. Each rule has its own
functions.
Q: Now, is the motion for a bill of particulars meritorious?
A: YES, because allegations of fraud must be stated with particularity.
So, you go back in Rule 8, Section 5:
Can the plaintiff file a motion for bill of particulars to compel he
defendant to clarify or to particularize his vague answer?
A: YES, because the plaintiff can say, “I cannot file my reply. I mean, I
want to file a reply but I can’t file a reply unless I understand what is your
defense.” So it works both ways.
So even if the reply is vague, it can still be the subject of the bill of
particulars within 10 days because there is no more responsive pleadings
there.
ISSUE: Is Section 9 applicable when the case is still in the
fiscal’s office for preliminary investigation?
HELD: NO. It is only applicable when the case is already
in court for trial or arraignment.
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Q: Suppose the court grants the motion and the defendant or the plaintiff
will be required to submit the bill of particulars. How will you comply with
the order to file a bill of particulars?
A: There are two (2) ways:
1.) Just submit the details of the vague paragraphs; or
2.) Amend the whole complaint and clarify the vague paragraphs
Q: Alright, suppose the motion is granted, the court ordered the plaintiff to
submit a bill of particulars. The plaintiff refused to comply with the order.
What is now the remedy?
A: The court may order the striking out of the pleading or portions thereof
which is the object of the bill of particulars.
Q: What is the effect for a motion for a bill of particulars when you file a
motion? What is the effect on that on the 15-day period to file the answer?
A. The 15-day period to answer is stopped or interrupted upon the filing of
the motion for bill of particulars. The period continues to run from the date
that you received the bill of particulars, if your motion is granted, or from the
receipt of the order denying your motion if it was denied. From there, the
period to answer will run again so you have to file your answer within the
balance of the remaining period.
It will be interrupted by the filing of the motion and the period commences
to run again from the time he received the bill of particulars or the order
denying his motion but not less than 5 days in any event.
Rule 13 : Filing and Service of Pleadings, Judgments and Other Papers
When you say FILING, you present the pleading in the office of the clerk of
court. When you say SERVICE, you furnish a copy of the pleading to the
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party concerned, or if he is represented by a lawyer, you must furnish a copy
of the pleading to the lawyer.
The GENERAL RULE, when a party is represented by a lawyer, the service
should be to the lawyer and not to the party. Service to a party is not valid.
What is valid is service to the counsel. Service to the lawyer binds the party.
But service to the party does not bind the lawyer, unless the court orders direct
service to the party.
HELD: “Usually, service is ordered upon the party himself, instead of
upon his attorney, [1] when it is doubtful who the attorney for such party
is, or [2] when he cannot be located or [3] when the party is directed to
do something personally, as when he is ordered to show cause.”
There are rare circumstances however where service to the lawyer does not
bind the client. These are cases of negligence; where the lawyer is in bad faith
for gross negligence; where he deliberately prejudiced his client. So it is
unfair that the party may be bound by the service to the lawyer because of
those circumstances. One such instance happened in the case of
BAYOG vs. NATINO
258 SCRA 378 [1996]
HELD: “Notice to the lawyer who appears to have been unconscionably
irresponsible cannot be considered as notice to his client. The application
to the given case of the doctrine that notice to counsel is notice to parties
should be looked into and adopted, according to the surrounding
circumstances; otherwise, in the court’s desire to make a short cut of the
proceedings, it might foster, wittingly or unwittingly, dangerous
collusions to the detriment of justice. It would then be easy for one
lawyer to sell one’s rights down the river, by just alleging that he just
forgot every process of the court affecting his clients, because he was so
busy.”
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“Where one counsel appears for several parties, he shall only be entitled to
one copy of any paper served upon him by the opposite side.”
Under Section 3, there are two (2) modes of filing – either
1.) Personally; or
2.) by registered mail
FILING BY REGISTERED MAIL
Q: What is the importance of registered mail on filing of pleadings and
motions in court?
A: The importance is the rule that in registered mails, the date of filing
is the date of mailing. If you send the pleading through the Post Office by
registered mail, the date of filing is not the date on which the letter reached
the court but on the day that you mailed it. So the date on the envelope is
officially the date of filing.
The post office is automatically a representative of the court for the purpose
of filing.
INDUSTRIAL TIMBER CORP. vs. NLRC
233 SCRA 597 [1994]
HELD: “Where a pleading is filed by ordinary mail or by
private messengerial service, it is deemed filed on the day it is
actually received by the court, not on the day it was mailed or
delivered to the messengerial service.”
What about filing by FAX machine? In the case of
GARVIDA vs. SALES, JR.
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April 18, 1997
HELD: “Filing a pleading by facsimile transmission is
NOT sanctioned by the Rules of Court. A facsimile is not a
genuine and authentic pleading. It is, at best, an exact copy
preserving all the marks of an original. Without the original,
there is no way of determining on its face whether the facsimile
pleading is genuine and authentic and was originally signed by
the party and his counsel. It may, in fact, be a sham pleading.”
Q: Do you mean to tell me the complaint does not have to be served to
the defendant by the plaintiff?
A: Of course not! It is the sheriff who will serve it to the defendant. So,
the plaintiff does not really have to go to the defendant to serve the complaint.
The complaint is brought to the court because the summons will be issued.
How are pleadings served personally? You deliver it personally to the party
if he is not represented by a counsel. And if he is represented, then to his
counsel. You don’t have to look for his lawyer – you way leave it to his office
with the clerk or any person charged thereof and that is already personal
service. Most lawyers have a receiving clerk authorized to receive pleadings.
CASE: The address of the lawyer is at the 9th floor. So, you serve it on
the 9th floor and not at the ground floor with somebody who is not even
connected with the law office.
“Notices to counsel should properly be sent to the address of record in
the absence of due notice to the court of change of address. The service
of decision at the ground floor of a party’s building and not at the address
of record of the party’s counsel on record at the 9th floor of the building
cannot be considered a valid service.”
“Service upon a lawyer must be effected at the exact given address of the
lawyer and not in the vicinity or at a general receiving section for an
entire multi-storied building with many offices.”
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CASE: While is true that the service was improper, but the trouble is, it
was going on for some time and you are not complaining. So, the ground
floor becomes your adopted address. Naloko na!
“They cannot now disown this adopted address [iyung ground floor] to
relieve them from the effects of their negligence, complacency or
inattention. Service, therefore, of the notice of judgment at the ground
floor of the building, should be deemed as effective service.”
For purposes of filing, the law does not recognize the ordinary mail. If you
do it, it will be treated as personal filing.
Kung somehow there was an attempt of personal service or registered service
at walang nangyari, you can resort to by serving a copy to the clerk of court
with proof of failure of personal and mailing service.
There are three (3) modes again of serving court orders or judgments to
parties:
1.) personally;
2.) registered mail; or
3.) service by publication
Service by publication. That is if the parties were summoned by publication
under Rule 14 and they did not appear. The judgment is also served to them
by publication at the expense of the prevailing party.
Q: Suppose you served the opposing counsel by mail.
A: The law requires that you must give an explanation why you resorted
to mail and not to personal service.
Q: Suppose I will file it without any explanation.
A: The law says, “A violation of this rule may be cause to consider the
paper as not filed.” And that is a very radical rule..
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Take note that courts are not covered by Section 11. It only applies to
lawyers and parties. The court does not have to explain why it resorted to
registered mail because Section 11 says, “Whenever practicable, the service
and filing of pleadings and other papers shall be done personally EXCEPT
WITH RESPECT TO PAPERS E EMANATING FROM THE
COURT.”
So the court is not obliged to give any explanation, only the parties and
their lawyers.
CONSTRUCTIVE SERVICE that if the registered mail was not received and
therefore you want to avail of the rules on constructive service – it is deemed
served upon the expiration of so many days. What you will file in court is the
unclaimed letter together with a certified or sworn copy of the notice given
by the postmaster to the addressee.
CASE: “A certification from the postmaster would be the best evidence
to prove that the notice has been validly sent. The mailman may also
testify that the notice was actually delivered. The postmaster should
certify not only that the notice was issued or sent but also as to how,
when and to whom the delivery thereof was made.”
CASE: determined upon receipt by the addressee of the registered mail;
(2.) Constructive service - the completeness of which is determined upon
the expiration of 5 days from the date of first notice of the postmaster
without the addressee having claimed the registered mail.”
“For completeness of constructive service, there must be conclusive
proof that Santos’s former counsel or somebody acting on his behalf was
duly notified or had actually received the notice, referring to the
postmaster's certification to that effect.”
This is part of the Property Registration Law. The essence of notice of
lis pendens is a notice against the whole world against sale or mortgage of
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the property under litigation. And whoever deals with it is accepting the risk.
Anybody who buys it is gambling an the outcome of the case. He cannot
claim he is the mortgagee or buyer in good faith because there is a notice.
RA person buying a property with a notice of lis pendens is buying it
subject to the outcome of the case. So you are gambling.
Now, as GENERAL RULE, the one who registers a notice of lis pendens
is the plaintiff. Exception:
Q: Under Section 14, can the defendant register a notice of lis pendens?
A: YES. The law states that “The plaintiff and the defendant may register
when affirmative relief is claimed in this answer.” In such case, a defendant
may register and normally it is done when there is a counterclaim. The
defendant is also interposing a defense with the same property.
Take note that the action in this case affects the right of possession over
real property.
Q: How is a notice of lis pendens cancelled?
A: GENERAL RULE: The notice of lis pendens under the rules cannot
be removed without the order from the court and generally the court cannot
issue the order until the case is finished or until the final issue of the case is
determined.
EXCEPTION: under Section 14: “After proper showing that the notice is: [a]
For the purpose of molesting the adverse party; or [b] It is not necessary to
protect the rights of the party who caused it to be recorded.”
CASE: So there is no more basis of notice of lis pendens because your
purpose is to harass the defendant for over a year litigation without
showing right over the land.
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“While a notice of lis pendens cannot ordinarily be cancelled for as long
as the action is pending and unresolved, the proper court has the authority
to determine whether to cancel it under peculiar circumstances, e.g.,
where the evidence so far presented by the plaintiff does not bear out the
main allegations in the complaint.”
Rule 15 : Motions
Q: Is it necessary that a motion be accompanied supporting affidavits
and other papers?
A: No, unless required by the Rules or necessary to prove facts alleged
therein.
Q: Give an example of a motion where supporting affidavits are required
by the Rules.
A: A motion for new trial on the ground of fraud, accident, mistake of
excusable negligence. Under Rule 37, Section 2, in order for a motion for
new trial on that ground to be valid, there must Be Affidavit Of Merits. If
there is no affidavit of merits, the motion will be denied.
However, if it is not required by the Rules, or the facts are already stated on
record, there is no need of supporting affidavits or documents. Example is
when you move to declare the adverse party in default
Anyway the court can look at the records, particularly the sheriff’s return, to
check when was the defendant was served with summons.
However, a motion need not be set for hearing if it is not a controversial
motion. Meaning, these are motions “which the court may act upon without
prejudicing the rights of the adverse party” such as a motion for extension of
time to file answer. So with this kind of motion, the court can immediately
grant your motion.
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And the law says, you serve the motion in such a manner as to ensure its
receipt by the other party at least three (3) days before the date of hearing.
Q: What is the effect if a party files a motion serving upon the adverse party
the motion in less than three days?
A: The court may refuse to take action on a motion which does not comply
with the rule requiring a three-day notice to the adverse party, “unless the
court for good cause sets the hearing on shorter notice.” Usually these are
urgent motions such as moving for postponement because your witness got
sick one day or hours before the trial.
Q: Now, what happens if a motion does not contain a notice of hearing?
A: A motion that does not contain a notice of hearing is but a mere scrap of
paper; it presents no question which merits the attention and consideration of
the Court. It is not even a motion for it does not comply with the rules. A
motion without notice of hearing is nothing but a piece of paper filed in court,
which should be disregarded and ignored.
Q: To whom should the notice of hearing be addressed?
A: It is addressed to all parties concerned.
Now, the law says, the notice of hearing should be addressed to the parties
and not to the clerk of court.
CASE: “Sections 5, Rule 15 of the Rules of Court which explicitly provide
that the notice shall be served by the applicant to all parties concerned and
shall state the time and place for the hearing of the motion. A notice of
hearing addressed to the Clerk of Court and not to the parties is no notice at
all.”
you “must specify the time and the date of the hearing which must not be later
than ten (10) days after the filing of the motion.”
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Proof of service of the motion is required
general rule :you cannot file anything in court without furnishing a copy to
your opponent. A motion cannot be filed ex-parte.
The only exception here are motions which can be filed ex-parte because they
are not controversial.
Motion hearings are scheduled on Friday afternoons except those motion
which require urgent action. So if today is Friday and it’s a holiday, sa
Monday pa ang hearing. But again, some judges do not follow this.
The word “omnibus” means “all embracing or all encompassing.”
Under the PRESENT RULE, when you file a motion, the pleading to be
admitted must already be included in your motion. Pag-file mo nng motion,
kasama na iyong pleading. The pleading sought to be amended must already
be included in the motion. One-time filing ba!!
The rule on pleadings also applies to written motion as far as caption,
designation, signature and other matters of court. So in appearance there is
difference between the appearance of a pleading and the appearance of a
motion. But definitely, a motion is not a pleading although it looks like a
pleading.
Rule 16: Motion to Dismiss
Q: When do you file a motion to dismiss?
A: within 15 days instead of filing an answer the law allows the defendant to
file instead a motion to dismiss.
a motion to dismiss is available not only for the purpose of dismissing the
complaint but also for dismissing a counterclaim, a cross-claim, a third party
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complaint because the laws says “before filing the answer to the complaint
or pleading asserting a claim.” A claim can be ascertained not only in a
compliant but also in other pleading such as counterclaims, etc.
Q: When will that happen?
A: When there is absence of summons or improper service of summons.
The principle is that the moment you file a motion for bill of particulars or
you file a motion for extension of time, in effect you have already submitted
to the jurisdiction of the court. If there was any defect in the service of
summons, it was already cured. Waived na ‘yon.
if actually it came to the attention of the defendant, the defect is cured
So many exceptions such as: (1) waiver; (2) voluntary appearance; (3)
improper service but the defendant came to know about it so you cannot rely
on the technicality and (4) then you have the case of Linger.
CASE: if the sheriff did not know how to serve the summons, why should
the plaintiff’s complaint be dismissed when it is not his fault. The correct
procedure is for the court to issue another summons and direct that the
sheriff should serve it properly.
Q: Suppose I will file a motion to dismiss. Assuming that there is a
ground of lack of jurisdiction over my person and venue is improper.
Meaning, I will cite 2, 3 or 4 grounds. Is that possible?
A: When you cite other grounds like prescription, you are now submitting to
the jurisdiction of the court. In effect you have waived the ground of lack of
jurisdiction
Can a defendant file a motion to dismiss based on the lack of jurisdiction over
the person together with other grounds? Are you deemed to have waived the
issue of lack of jurisdiction?
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NO, you can not file a motion to dismiss because of the omnibus motion rule.
When you file a motion to dismiss, you have to invoke all the grounds. So,
you are not waiving that ground.
CASE: When you file a motion to dismiss citing lack of Jurisdiction over
your person together with other grounds, there is no waiver on the defect
of lack of jurisdiction. So, you can file a motion to dismiss on that ground
together with other grounds. There is no more waiver in effect that is the
recent decision. The inclusion in a motion to dismiss of other grounds
aside from lack of jurisdiction over the person of the defendant shall not
be deemed a voluntary appearance.
Q: How do we determine whether a court has a jurisdiction or not over a
particular case?
A: By reading the compliant, we will know whether the subject matter is
within the jurisdiction of the court or not. So the principle to remember is,
jurisdiction over the subject matter of the case is determined by the
allegations in the complaint. They are determined in the allegations of the
complaint itself, not by the allegation of the defendant in his motion to
dismiss.
SECOND PRINCIPLE: When a defendant files a motion to dismiss on
the ground that the court has no jurisdiction over the subject matter, the
defendant hypothetically admits all the allegations in the complaint to be true.
The defendant in the meantime, is not allowed to present evidence that the
court has no jurisdiction. Everything must be decided on the face of the
complaint only.
THIRD PRINCIPLE: Jurisdiction over the subject matter, once acquired
by the court upon the filing of the complaint, the court retains the jurisdiction
over that case until that case is terminated. Any subsequent development or
any subsequent amendment of the law will no longer deprive the court of its
jurisdiction.
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The ONLY POSSIBLE EXCEPTION there is what the Supreme Court
says, if the new statute is intended to be curative in character – to cure the
defect under the old law – then the rule on adherence of jurisdiction does not
apply.
FOURTH PRINCIPLE: Lack of jurisdiction over the subject matter may
be raised: 1) In the answer; 2) In the course of the trial; 3) After the trial; 4)
After the judgment; or even 5) For the first time on appeal.
Q: Can the issue of lack of jurisdiction over the subject matter be raised
in the middle of the trial?
A: YES, there is no waiver.
CASE: jurisdiction of a court over the subject matter of the action is a matter
of law and may not be conferred by consent or agreement of the parties.
Q: Suppose you file a motion to dismiss on the ground of improper
venue, but your motion to dismiss is denied. What is your remedy?
A: Your remedy is to resort to the special civil action of prohibition under
Rule 65. And you should resort to it immediately because if you will file your
answer and go to trial, in effect, you will be waiving the objection. The
objection must be pursued diligently. That was the pronouncement in the case
of Pangasinan Transportation Co. v. Yatco (21 SCRA 658).
Q: Give an example when the plaintiff has no legal capacity to sue.
A: A minor will file a case without being assisted by his parents or
guardian. Or, a person will file a case in behalf of a minor claiming that he is
a guardian when in fact he is not. He is not the parent of the child. He is not
also appointed by the court.
According to the SC, when you say that the plaintiff lacks legal capacity
to sue, there are two (2) possible meanings. It means any of the following:
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1.) when the plaintiff does not possess the necessary qualifications to
appear at the trial such as when the plaintiff is not in the full exercise
of his civil right like when he is a minor, or insane; and
when the plaintiff does not have the character or representation which he
claims like he claims to be a guardian when in reality he is not.
Q: (Bar question) Distinguish lack of legal capacity to sue from lack of
legal personality to sue.
A: The former refers to disability of the plaintiff while the latter to the fact
that the plaintiff is not a real party in interest, in which case, the ground for
dismissal would be that the complaint states no cause of action
So if the agent files an action in his own name, rather than that of the
principal, what you are going to say is, you are not the real party in interest.
You are not challenging his age or disability but you are challenging his being
placed as plaintiff when actually he is only the attorney-in-fact or agent. In
effect, when you raise this ground, actually that would fall more under
paragraph [g] – that the pleading asserting the claim states no cause of action
because there is no cause of action in favor of the agent. The cause of action
is in the principal.
Notice of Lis Pendens - That is the notice that you annotate on the title of the
property when you are filing a case for its recovery.
Do you know what he said? Itong forum-shopping, how it started? Actually,
it is a concept in Private International Law where you shop for a forum –
where you look for a country where you will file a case and then the court of
that country will now reject it on the ground for forus non convenlens. That
is where it originates eh. You are shopping for a forum.
So, what is the difference between forum shopping and litis pendentia?
Actually, there is no difference. Mas maganda pa nga i-dalawa mo – litis
pendentia and forum shopping. Ano ang effect? Sabihin mo, litis pendentia
– one will be dismissed, the other will remain alive. In forum shopping
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naman, parehong patay iyan. The court will dismiss both. I-disciplinary
action pa ang abogado. There is no contempt of court in litis pendentia.
CASE HELD: Forum-shopping exists where the elements of litis
pendencia. The test therefore in determining the presence of forum-
shopping is whether in the two (or more case) pending, there is identity
of (a) parties, (b) rights or causes of action and (c) reliefs sought. Forum-
shopping does not require a literal identity of parties. It is sufficient that
there is identity of interests represented.
When there is already adjudication on the merits in one case to be more
accurate, RES ADJUDICATA should be alleged, and not forum shopping as
a defense because the decision in the previous case had already become final
and executory. So, when there is already a judgment in the previous case to
be exact that should be res judicata. But when there is no decision yet, that is
litis pendentia and forum shopping.
Any judgment which the court will render in the first case regardless of who
wins will amount to res adjudicata in the second action.
CASES :
1. Anullment of mortgage contract and foreclosure of the same
mortgage – no litis pendentia
2. Recovery of piece of land – accision publiciana and quieting of itle
– litis pendentia
3. Declaratory relief ng contract of lease and unlawful detainer – litis
pendentia
When there is litis pendentia, which action should be dismissed?
1. What is more appropriate action to remain
2. Interest of justice – the court should ask which case is in a better
position to serve the interest of justice or which case should remain
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to serve the interest of justice taking into account the nature of the
controversy, the comparative accessibility of court to the parties and
other similar facts
So, the general rule is: dismiss the second case, let the first case remain based
on the rule on priority in time. But sometimes, sabi ng SC, it is better that the
first case is dismissed by using the standard of (1) more appropriate action or
(2) interest of justice.
CASE HELD: Justice Mendoza summarized the principle in this manner:
Given, therefore, the pendency of two actions, the following are the
relevant considerations in determining which action should be
dismissed:
(1) the date of filing, with preference generally given to
the first action filed to be retained – that is the priority
in time rule;
(2) whether the action sought to be dismissed was filed
merely to preempt the later action or to anticipate its
filing and lay the basis for its dismissal – iyan ang
tinatawag na the best defense is offense – that is the
TEODORO vs. MIRASOL case – the action is filed
merely as an anticipating action; and
(3) whether the action is the appropriate vehicle for
litigating the issues between the parties.
Cases : The actions does not become pending only from the time you
receive the summons. It is pending form the moment it was filed.
Whether the pleading states a cause of action or not is determined only
by allegations in the pleading.
11
Assuming for the sake of argument that everything contained in your
complaint or pleading is really correct, are you entitled to the relief prayed
for?”
If the answer is YES, then it states a cause of action.
When the defendant disputes the truth of the allegations of the complaint,
the correct move is to file an answer and not a motion to dismiss.
The ground is the failure of the complaint to state a cause of action which is
obviously not the same as the plaintiff not having a cause of action.
CASE: “The hypothetical admission is however limited to the relevant
and material facts well pleaded in the complaint and inferences fairly
deductible therefrom. The admission does not extend to conclusions or
interpretations of law; nor does it cover allegations of fact the falsity of
which is subject to judicial notice.”
Q: Now, is there an exception to the rule that when the court determines
whether there is a cause of action or not, the court cannot look at the evidence
– all must be based on the complaint and there should be no appreciation of
any evidence?
A: where a hearing was held and documentary evidence was presented,
not on the Motion to Dismiss but on the question of granting or denying
an application for a Writ of Preliminary Injunction, a motion to dismiss
for insufficiency of cause of action will be granted if documentary
evidence admitted by stipulation disclosing facts sufficient to defeat the
claim which authorizes the court to go beyond disclosure in the
complaint.
EXAMPLES of Statute of Frauds under Article 1403:
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1.) a contract that by its terms is not to be performed within one
year from the making of such contract;
2.) a special promise to answer for the debt, default, or miscarriage
of another;
3.) an agreement made in consideration of marriage, other than a
mutual promise to marry;
4.) an agreement for the sale of goods, chattels or things in action,
at a price not less than five hundred pesos…;
5.) an agreement for the leasing for a longer period than one year,
or for the sale of real property or an interest therein;
6.) a representation as to the credit of a third person.
the law requires something to be done before going to court and if you
file the case in court immediately without complying with that condition
precedent, then the defendant can move for dismissal of the complaint.
EXAMPLES:
1.) Failure to exhaust administrative remedies;
2.) Failure to undergo Barangay Conciliation;
For parties residing in the same city, one must first settle or
compromise the suit at the barangay level before raising the
action in court. If nothing will happen then proceed the case to
court.
3.) Article 151 of the Family Code contemplates suit between family
members.
It must be alleged in the complaint that earnest efforts towards a
compromise is made between: husband and wife, parents and children,
ascendants and descendants, brothers and sisters, whether full or half
blood. So you are not allowed to file a case directly between family
members in order to preserve the family as a basic social institution being
the foundation of the nation.
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Art. 2035. No compromise upon the following questions shall
be valid:
1. The civil status of persons;
2. The validity of a marriage or a legal separation;
3. Any ground for legal separation;
4. Future support;
5. The jurisdiction of courts;
6. Future legitime.
During the hearing of a motion to dismiss, the movant is allowed to present
evidence to prove his claim. Like for example: the venue is not properly laid
or the action is already extinguished by payment or the action is already
barred by a prior judgment.
GENERAL RULE: On hearing on a motion to dismiss, the defendant is
allowed to present evidence to prove the ground for his dismissal.
EXCEPTION: He is not allowed when the grounds are:
1.) Lack of jurisdiction over the subject matter (paragraph [b]); or
2.) The pleading asserting the claim states no cause of action
(paragraph [g])
When these are the grounds invoked, the defendant is not allowed to
present evidence because you are hypothetically admitting all the allegations
in the complaint as true and correct. You are not allowed to dispute or deny
those allegations. It shall be based purely on the allegations of the complaint
so you are not allowed to prove that those allegations are not true.
And should the case go to trial, the evidence presented shall
automatically form part of the evidence of the party presenting the same.
There is no need to present those evidence again during the trial because the
evidence during the hearing is automatically part of the evidence during the
trial. This is similar to the rule on Bail in Criminal Procedure.
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Q: What about a suit to a nephew?
A: Article 151 will not apply. One can file directly to the court because
even though he is your relative he is not a member of your family.
Q: How about a suit against a brother and a stranger?
A: There is no need for the requirement of earnest efforts. It is a mixed
case, there is already a stranger included. Pag-nahaluan na, Article 151 will
not apply anymore.
Q: How will the court rule on the motion to dismiss?
A: The following:
1.) The court will dismiss the action. (motion is granted);
2.) The court will deny the motion (proceed to trial); or
3.) The court will order the amendment of the pleading
Q: Now, suppose there is already an order of dismissal in which the court has
already ordered the dismissal of the case, because it does not state the cause
of action of the complaint. Plaintiff: “Alright! Motion to amend the complaint
to state the cause of action and set aside the order of dismissal.” Can that still
be done at that stage where there is already an order of dismissal?
A: YES! Provided the order of dismissal has not yet become final and
executory because the rule is absolute: for as long as there is still no
responsive pleading, the right of the plaintiff to amend his complaint is a
matter of right.
When the court orders the amendment of the pleading, in effect the
motion to dismiss is also denied
13
Q: Suppose defendant files a motion to dismiss and the court granted the
motion. The case is dismissed. What happens to the case?
A: No more case.
GENERAL RULE: A case that has been dismissed can be re-filed.
EXCEPTIONS: When the case was dismissed on the following grounds:
1.) That the cause of action is barred by a prior judgment or by the
statute of limitations;
2.) That the claim or demand set forth in the plaintiff’s pleading
has been paid, waived, abandoned or otherwise extinguished;
or
3.) That the claim on which the action is founded is unenforceable
under the provisions of the Statute of Frauds.
Q: For example, the court says: “Your action is barred by res judicata.” But
actually, the court is wrong, what is your REMEDY?
A: Your remedy is to appeal from the order of dismissal, but not to re-file the
case because that would already be res adjudicata.
So the grounds for a motion to dismiss are convertible. Instead of filing
a motion to dismiss, I will allege the grounds as affirmative defenses, like—
no cause of action, litis pendentia, res adjudicata, payment, statute of frauds,
prescription…
Under Section 6, after filing of such answer, the defendant can ask for a
preliminary hearing on his affirmative defenses as if a motion to dismiss has
been filed. Meaning, this should be heard ahead. And if the court grants the
preliminary hearing, you can move your affirmative defenses ahead and if
you correct, the court will dismiss the case. So, it has the same effect as if
you file a motion to dismiss. That is why a preliminary hearing may be had
as a motion to dismiss.
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Q: Suppose I will file an answer with affirmative defenses and with a
counterclaim. If the court dismisses the complaint, what happens to my
counterclaim?
A: Under the NEW RULES, there are two possibilities:
1.) The defendant can still prosecute his counterclaim in a separate
action; or
2.) The defendant can dismiss the complaint but the counterclaim
remains alive.
Rule 17 : Dismissal of Actions
Q: How?
A: By filing a NOTICE OF DISMISSAL at ANY TIME BEFORE service
of the answer or a motion for Summary Judgment. Meaning, for as long as
the defendant has not yet filed his answer, the plaintiff has the right to dismiss
his own complaint by simply sending the court what is known as a notice of
dismissal.
Under the rules on civil procedure, there are two types of dismissal:
1. Dismissal with prejudice – the case can no longer be re-filed;
2. Dismissal without prejudice –the case can be re-filed.
Q: Is the dismissal under Section 1 with or without prejudice?
A: GENERAL RULE: The dismissal is WITHOUT PREJUDICE. The
case can be re-filed.
EXCEPTIONS:
1.) When in the notice of dismissal itself, the plaintiff himself
stated that he is dismissing his own complaint with prejudice;
OR
2.) When a notice operates as an adjudication upon the merits when
filed by a plaintiff who has once dismissed in a competent court
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an action based on or including the same claim. This is the
TWO-DISMISSAL RULE.
I will file a motion to dismiss the case because the second dismissal is
automatically with prejudice.
This is known as the 2-dismissal rule. You cannot file it for the third
time.
Briefly, the two-dismissal rule simply means that when the same complaint
had twice been dismissed by the plaintiff under Section 1 by simply filing a
notice of dismissal, the second dismissal shall be with prejudice.
CASE: It DEPENDS on whether the order of dismissal has already
become final.
a.) If within 15 days from the time it is ordered dismissed,
all that you have to do is to ask the court to set aside the order
of dismissal and re-vive the case because the order of dismissal
have not yet become final.
b.) However, if the order of the court dismissing the
complaint based on your own notice has become final after 15
days, then the only way you can revive it is to file an entirely
new action.
Q: Now, suppose the complaint is dismissed under Section 2 upon
initiative of the plaintiff, can he re-file the case?
A: The rule is the same as Section 1 – the dismissal of the complaint
under Section 2 shall be without prejudice unless otherwise specified in the
order of dismissal. So, the dismissal under Sections 1 and 2 is generally
without prejudice.
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The last sentence, “A class suit shall not be dismissed or compromised
without the approval of the court.”
it cannot be dismissed or compromised without the approval of the court.
CASE: Why dismiss the case when he has already presented his
evidence? It is tantamount to deciding the case against the plaintiff
without considering the evidence that he has presented. What is the
remedy then?
What the court should do is to proceed with the presentation of the
defendant’s evidence without the plaintiff. Do not dismiss the case the
plaintiff has already presented his evidence.
If plaintiff fails to appear on the date of the presentation of his evidence-in-
chief, but he arrived a little bit late, or he failed to appear because he failed
to receive the notice setting it, that is different because the law says, “for no
justifiable cause.” If I am late but a few minutes only, that is not a good basis
to dismiss the case forever. There is no intentional failure not to appear. In
which case, if there is an order of dismissal, it should be set aside because the
condition is “for no justifiable cause.”
the complaint is filed, answer if filed, the case has not been set for pre-trial,
the plaintiff did not take the initiative to have the case set for pre-trial.
the case cannot be tried because the defendant cannot be summoned.
And for more than one year, the plaintiff cannot supply the court of the correct
address of the defendant.
The court says, “Plaintiff, you are hereby directed to amend the complaint.”
Plaintiff refuse to amend. The court will dismiss the case.
15
Amend the pleading, submit a bill of particulars or certification of non-forum
shopping
Q: Give the EXCEPTIONS (When may the court dismiss the complaint motu
propio?).
A: The following
1. Section 3, Rule 17 (Plaintiff’s fault);
2. When on its face, the complaint shows that the court has no
jurisdiction over the subject matter;
3. When there is litis pendentia; or res adjudicata; or when the
action has prescribed;
4. Under the Summary Rules, the court is empowered to dismiss
immediately without any motion.
GENERAL RULE: Dismissal due to the fault of the plaintiff is with
prejudice.
EXCEPTION: Unless the court provides otherwise
Rule 18 : Pre – trial
plaintiff is duty bound to move ex parte that the case be set for pre-trial. No
civil action can reach the trial stage without passing the pre-trial period.
In civil cases, the pre-trial is MANDATORY – no case can reach the trial
stage without undergoing Pre-Trial. And it is the duty of the plaintiff and not
of the clerk of court to move to set the pre-trial. A motion for pre-trial can
be filed ex parte, an exception to the rule that no motion can be filed ex parte.
Issue will be simplified or lessened/reduced to the most important and
relevant ones.
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Take note that there is already a complaint and answer and yet during the pre-
trial, the parties can still amend their complaint or answer. That means that
amendments of pleadings are favored even at this stage. Amendment is
necessary which is favored by the liberality principle, to adjudicate the case
upon proper merits.
INSURANCE CO. OF NORTH AMERICA vs. REPUBLIC
21 SCRA 887
BAR PROBLEM: Suppose A sued B. After pre-trial, it
was determined that there was a necessity for amending the
complaint. It was amended. Is there a need for a new pre-trial
for the amended complaint?
ANS: Where a pre-trial has already been had, the fact that
an amended complaint is filed, does not mean the need for a
new pre-trial. Pre-trial is not mandatory. Exception to this is
when the parties agree to conduct another pre-trial.
(d) STIPULATION OF FACTS
Stipulation of facts means we can agree on some facts and there is no
need of proving them in court because we already agreed. Such will hasten
the trial because matters validly agreed upon can be dispensed with (e.g., size
of the land, improvements thereon, stipulations, due execution of documents,
etc.)
The court, during a pre-trial, is authorized to render a judgment on the
pleadings or a summary judgment if there is a ground. In the same manner,
the court may order the dismissal of the action should a valid ground therefor
be found to exist because it is possible that based on the complaint, there is
no ground to dismiss but in the course of pre-trial, the plaintiff may admit
something which turns out to be a ground for dismissal.
16
So a civil action may be suspended if at any time one of the parties offered to
discuss a possible compromise because the policy of the law is to have civil
cases settled between the parties amicably. Let the parties talk among
themselves to come up with the possibility of amicable settlement even if one
of the parties refuse to accept such an offer.
There must be notice of pre-trial which will be issued after you comply with
Section 1. Then there will be a schedule. The notice will be served upon the
counsel or upon a party, assuming that he is not represented by a lawyer. The
counsel served with such notice is charged with the duty of notifying the party
represented by him.
In a pre-trial, the law requires the presence of the party and his counsel
because the purpose of a pre-trial is to consider the possibility of an amicable
settlement.
The lawyer has no power or authority because amicable settlement is a matter
of bargaining.
The PRESENT RULE is: Notice to lawyer is notice to party.
Q: Is it possible for a party who will not appear a pre-trial but his
appearance is not necessary?
A: YES, Section 4, if a valid cause is shown like, he got sick. Or, if a
representative shall appear in his behalf duly authorized in writing to enter
into an amicable settlement, to submit to alternative modes of dispute
resolution, etc.
Meaning, you can delegate somebody who has a written authority.
Sometimes it is the lawyer who is given the Power of Attorney authorizing
him to enter into an amicable settlement. Walang Problema yan
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Q: Suppose one of the parties in the case is a CORPORATION. A
corporation cannot appear because it has no physical existence. Who is
authorized to appear in a pre-trial in order to enter into an amicable
settlement? Are the managers or vice-president, authorized to appear in a pre-
trial in behalf of the bank which is a party to the case?
A: NO! Even the president or the chairman of the board has no power.
Q: Who can bind a Corporation?
A: Only the Board of Directors has the authority to bind a corporation.
The Board can pass a resolution naming the person who will represent the
corporation. So, the manager for example, can appear in the pre-trial
provided he is authorized through a board resolution
Again, the RULE is: Both the lawyer and the party should appear in the
pre-trial because the first purpose of pre-trial is the possibility of an amicable
settlement and the lawyer alone has no authority to enter into an amicable
settlement.
Non-appearance may be EXCUSED only if:
1. A representative shall appear in his behalf fully authorized in
writing (e.g. SPA)
2. For a valid cause – example, if you are sick.
If the PLAINTIFF fails to appear, his case will be dismissed for not
appearing.
If it is the DEFENDANT who failed to appear, the law says, it shall be a
cause to allow the plaintiff to present his evidence ex-parte and the court to
render judgment on the basis thereof.
General Rule :
17
HELD: Under Rule 9 on default, if you are declared in
default, you only file a motion to lift the order of default and
you have to allege that you have a meritorious defense. But in
Rule 18, when you file a motion, it is a simply a motion for
reconsideration where you will state the reason why you failed
to appear and ask that the order be reconsidered and that the
judgment be set aside.
Under Rule 18, there is no use to say that you have a
meritorious because you have already filed an answer. The
defense is already there. Unlike in defaulted defendant, the
court has no idea what is your answer kaya nga you must
convince the court that you have a meritorious defense.
Exception:
UNLESS the parties themselves had voluntarily agreed that the case
be set anew for pre-trial.
Take note that at least three(3) days before the date of pre-trial the parties’
lawyers should file pre-trial briefs to be furnished with each other. In that
brief, you summarize everything covered by your pleadings.
It contains: Cause of action; defenses; issued to be tried; admitted facts; facts
you believe should be stipulated; the documents or exhibits you would like
the present; or who are the witnesses and what are they going to testify, etc.
That’s a summary of everything that is going to happen from the beginning
of the trial up to the end.
Q: What happens if a party fails to file a pre-trial brief?
A: Last paragraph, “Failure to file the pre-trial brief shall have the same effect
as failure to appear a the pre-trial conference.” So, if it is the PLAINTIFF
who failed to file a pre-trial brief, his complaint may be ordered dismissed.
If it is the DEFENDANT who failed to file a pre-trial brief, that would be a
cause for the court to allow the plaintiff to present his evidence ex-parte.
MIRANDA NOTES BAR 2019 - Remedial Law
IMPORTANT :
Q: What are the instances where the PLAINTIFF may be penalized by
the court with a dismissal of his complaint?
A: In the following instances:
1.) Where plaintiff fails to appear during the presentation of his
evidence-in-chief to prove his cause of action (Rule 17,
Section 3);
2.) Failure to appear in the pre-trial conference (Rule 18, Section
5);
3.) Failure to file a pre-trial brief (Rule 18, Section 6)
Q: On the other hand, when would the DEFENDANT be penalized by
the penalty that plaintiff be allowed to present his evidence ex parte and
judgment be rendered based purely on such evidence?
A: In the following instances:
1.) Failure to file an answer under Rule 9 on Default;
2.) Failure to appear in a pre-trial conference (Rule 18, Section 5);
3.) Failure to file a pre-trial brief (Rule 18, Section 6)
A pre-trial order should state or should summarize everything what was
taken up in a pre-trial conference, the issues to be resolved, the facts to be
admitted, etc. what is important there is the third sentence: “Should the
action proceed to trial, the order shall explicitly define and limit the issues to
be tried. The contents of the order shall control the subsequent course of the
action, unless modified before trial to prevent manifest injustice.” It may be
an ordinary sentence but the effect of that is terrible.
Rule 19 : Intervention
An intervention is related to a third-party complaint. It is a process by which
a stranger or a third party is included in a case, but with the difference that in
a third-party complaint, it is the party who brought you in. While in
intervention, the initiative comes from the third person and he is known as
the intervenor.
18
. There must be a legal ground for intervention which can be found in
Section 1:
Q: What are the grounds for intervention?
A: The following are the GROUNDS for intervention:
1.) The intervenor has a legal interest on the matter under litigation;
2.) The intervenor has a legal interest in the success of either of the
parties;
3.) The intervenor has a legal interest against both; or
4.) The Intervenor is so situated as to be adversely affected by a
distribution or other disposition of property in the custody of
the court or of an officer thereof.
They cannot intervene the legal interest they are claiming is contingent,
expectant – there is no assurance that your father will die ahead of you. The
interest referred to by the law is an interest that is direct immediate, actual
existing interest as distinguished from expectant, inchoate or contingent
interest.
Can you not file a third-party claim if your property is wrongfully
attached?
YES you can, but that is not the only remedy. The law allows the third
person to file an intervention in the main action.
It is discretionary. A motion for intervention must be filed by the intervenor.
The court may or may not grant the motion - the court shall consider whether
or not the intervention will unduly delay or prejudice the adjudication of the
rights of the original parties and whether or not, the intervenor’s rights maybe
fully protected in a separate proceeding.
BAR QUESTION: Now, there are some instances by way of exception when
intervention maybe a matter of right. What are these exceptions?
A: The following:
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1.) When the intervenor turns out to be an indispensable party; and
2.) Class suit (Section 12, Rule 3)
So, that would be another instance where intervention seems to be a matter
of right rather than a matter of discretion.
Q: When do you move to intervene?
A: Under Section 2, at any time before rendition of judgment by the trial
court. So, you cannot intervene when there is already a decision.
When you file a motion to intervene, the pleading-in-intervention that you
want to file should already be included.
The copy of the pleading and intervention shall be attached to the motion and
served on the original parties.
When you file a motion for leave, the pleading must already be included in
your motion. An example is a motion to intervene where it must already be
accompanied by the pleading-in-intervention.
A complaint-in-intervention must be answered within fifteen (15) days
from notice of the order admitting the same, unless a different period is fixed
by the court. So you have 15 days.
Q: What is the period to answer an amended complaint-in-intervention?
A: It is either 10 or 15 days just like answering an ordinary amended
complaint.
An intervention is merely collateral or accessory or ancillary to the
principal action and not an independent proceeding. It is an interlocutory
proceeding dependent on or subsidiary to the case between the original
parties. Where the main action ceases to exist, there is no pending
proceeding wherein the intervention maybe based. If the main action
dies, the intervention dies also.
19
When the intervention is granted and the main action is withdrawn or
dismissed, it would be unfair to dismiss the intervention. So the
intervention proceeds notwithstanding the withdrawal of the main action.
Q: Is a transferee pendente lite of the property in litigation has a right to
intervene?
A: Rule 3, Section 19 is to provide for the substitution of the transferee
pendente lite precisely because he is not a stranger but a successor-in-
interest of the transferor, who is a party to the action. As such, a
transferee’s title to the property is subject to the incidents and results of
the pending litigation and is in no better position than the vendor in
whose shoes he now stands.”
“How then can it legally be possible for a transferee pendente lite to still
intervene when, for all intents and purposes, the law already considers him
joined or substituted in the pending action, commencing at the exact moment
when the transfer of interest is perfected between the original party-transferor
and the transferee pendente lite?
if you are a TRANSFEREE PENDENTE LITE, there is no need for you to
intervene because you are already a (necessary) party. On the other hand, an
INTERVENOR can decide whether or not he wants to join to be bound by
the judgment of the main case. So that is the ruling in SANTIAGO LAND.
Is a writ of MANDAMUS available to compel a trial court to grant a
motion for intervention?
HELD: “As provided under Rule 19, Section 1, intervention shall be
allowed in the exercise of discretion by a court. Ordinarily, mandamus
will not prosper to compel a discretionary act. But where there is gross
abuse of discretion, manifest injustice or palpable excess of authority
equivalent to denial of a settled right to which petitioner is entitled, and
there is no other plain, speedy and adequate remedy, the writ shall issue.”
Rule 20 : Calendar of Cases
MIRANDA NOTES BAR 2019 - Remedial Law
 The clerk of court has a calendar of cases – cases for :
o Pre trial
o Trial
 Preference shall be given to certain type of cases like habeas corpus.
Rule 21 : Subpoena
Q: What are the types of subpoena under the law?
A: The following are the types of subpoena:
1.) Subpoena Ad Testificandum; and
2.) Subpoena Duces Tecum
Take note that a subpoena is a process which requires a witness to testify not
only during the hearing or the trial of his case but also any investigation
conducted by “competent authority” like quasi-judicial bodies such as the
Labor Arbiter or the Senate Blue Ribbon Committee.
Q: Can you subpoena a PRISONER to appear in court?
A: YES, but the law says that the judge should be very careful to find out
whether it is issued for a valid purpose because there is a risk. If a prisoner
is going to be brought out in jail because he has to testify in a case, that might
be an occasion for him to escape. So, the court should be very careful about
that. The court should have to find out whether it is necessary.
“No person sentenced to death, reclusion perpetua, or life imprisonment and
who is confined in a penal institution shall be brought outside the said penal
institution for appearance or attendance in any court unless authorized by the
Supreme Court.”
GROUNDS TO QUASH SUBPOENA DUCES TECUM
1.) If the subpoena duces tecum is unreasonable and oppressive;
20
2.) The relevancy of the books, things or documents does not
appear;
3.) the person in whose behalf the subpoena is issued fails to
advance the reasonable cost for the production thereof.
1. IF THE SUBPOENA DUCES TECUM IS UNREASONABLE AND
OPPRESSIVE
Well, the best example is if it violates Section 3 – it does not contain a
reasonable description of the book, documents or things demanded.
2. THE RELEVANCY OF THE BOOKS OR DOCUMENTS DOES
NOT APPEAR
There appears to be no connection between the documents which are
being sought, and the issues in the case.
GROUND TO QUASH SUBPOENA AD TESTIFICANDUM
Q: How do you quash a subpoena ad testificandum?
A: The court may quash a subpoena ad testificandum on the ground that
the witness is not bound thereby.
Q: When is a witness not bound by a subpoena?
A: The best answer is Section 10 of this rule – if your residence is more than
100 kilometers from the place of trial.
“You must also tender the witness fees and kilometrage allowed by this
rules.” That is different from the reasonable cost and reproduction in the first
paragraph. So, these are the grounds for questioning a subpoena.
S7 :
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GENERAL RULE: You can be compelled to testify if you have not been compelled by the issuance of a
serve with a subpoena. warrant for his arrest
EXCEPTION: Section 7 – a person present in court before a judicial Applicable to oth criminal and civil Applies only to civil cases
officer maybe required to testify as if he is under subpoena. case
There is a 100km limitation of its There is no distance limitation
Any person present inside the courtroom can be compelled to testify as enforceability
if he is under subpoena.

Because any person present in court can be compelled to testify because Rule 22: Computation of Time
if I will have him subpoena, he will be forewarn. So I do not want to forewarn
him. EXCLUDE THE FIRST AND INCLUDE THE LAST DAY

Although, this 100-km distance does not apply if it is a criminal case You start counting 1(one) tomorrow, not today because the day of the act
where the accused would like to seek the compulsory process issued to secure or event from which the designated period of time begins to run is to be
the attendance of witnesses in his behalf because that is a superior right. excluded.

That the 50-km (now 100-km) limitation applies only to civil cases, but Q: Now what happens if the last day to answer falls on a Saturday,
not to criminal cases, especially if the person to be subpoenaed is a defense Sunday or a legal holiday?
witness because of the constitutional right of the accused which is a right
which cannot be curtailed by the Rules of Court A: Then, the time shall not run until the next working day. So there will
be an automatic extension to Monday or the next working day.
Q: Distinguish SUBPOENA from SUMMONS.
Rule 23 : Depositions Pending Action
Subpoena Summons
Directed to a witness Directed to a defendant in a civil
case Evidentiary matters should not be alleged in the pleading but is only proved
The witness is directed to appear in The defendant is informed that a in the trial.
court or to bring documents complaint is filed against him and
he must file a responsive pleading There are actually five (5) Modes of Discovery:
within the period otherwise,
judgment can be rendered 1. DEPOSITIONS – (a) pending action (Rule 23) and (b) before action
The witness will be declared in A judgment in deault will be or pending appeal (Rule 24);
contempt or his attendance can be rendered against the defendant who 2. WRITTEN INTERROGATORIES TO PARTIES (Rule 25);
fails to comply
MIRANDA NOTES BAR 2019 - Remedial Law 22

3. REQUEST FOR ADMISSION OF ADVERSE PARTIES (Rule There is cross examination, there is Sworn statement of a witness but
26); a confrontation as if he is already the statement is taken ex parte (no
4. PRODUCTION OR INSPECTION OF DOCUMENTS AND testifying in court cross examination)
THINGS (Rule 27); and
5. PHYSICAL AND MENTAL EXAMINATION OF PERSONS
(Rule 28)

Deposition-taking under Section 1 presupposes that there is a pending

Q: How do I apply Rule 23?
A: I will take your deposition. Meaning, I will take your testimony in advance
by compelling you to appear before someone whom we call a Deposition
Officer – the judge, or any judge, or even a notary public - who can
administer oath. And then before him, I will be asking now questions and you
have to answer under oath. Your answers will then be recorded including that
of your witnesses.
Therefore, during the trial, when you or your witnesses will testify, there is
no more surprise testimony that you can give me because I already heard you
in advance. You cannot contradict your answer.
When I take the deposition of somebody, my opponent has the right to cross-
examine the same witness.
civil case kaya nga, the title is depositions pending action. There is an
existing civil case and I would like to take the deposition of certain people.
Q: When there is a pending action, is it necessary that leave of court or
permission should be sought for deposition to be allowed?
A: The rule is, it DEPENDS if there is already an answer or no answer:
If the defendant has already filed an answer and therefore jurisdiction over
the person of the defendant has been obtained, leave of court is not required.
1.) All you have to do is send the questions to the other party;
2.) But if there is no answer, where the court has not yet acquired
jurisdiction over the person of the defendant, it requires a
motion.

The questioning of the witnesses is done the way it is done during the trial. Another instance where leave of court is required under Section 1 is
The witness of the opponent has to undergo the same procedure in the rules when what is to be taken is a deposition of a person confined in prison.
of evidence.
*Basically – if may answer – walang leave of court
- if walang answer, meron leave of court
Deposition Affidavit

Q: Whose deposition can you take?

MIRANDA NOTES BAR 2019 - Remedial Law
A: The law says, you can take the testimony of any person whether a
party or not at the instance of any party.
Q: What are the modes of deposition taking?
A: Under the law, there are two (2) recognized modes:
1.) Deposition upon oral examination; and
2.) Deposition upon written interrogatories
There must be a deposition officer and under the law, even a notary
public is qualified to act as deposition officer because he can administer
oaths.
S1 : “the attendance of witnesses may be compelled by the use of a
subpoena as provided in Rule 21.”
Q: Can you ask the court in Davao to issue a subpoena compelling such
witness to come here and testify even if the distance is more than 100
kilometers?
A: NO, because of Section 10 of Rule 21. The remedy is you go to Cebu
and get a deposition officer and take her deposition.
Q: How can I compel her to go to the office of the notary public in Cebu
for the purpose of the deposition?
A: You can get a subpoena from the Cebu court and that is allowed under
Rule 21, Section 2 [b] and under Rule 21, Section 5:
Subpoena may be issued by the court of the place where the deposition is to
be taken.
The subpoena has no more effect beyond 100 kilometers. It should be filed
not where the case is pending but at the court of the place where the
deposition is to be taken
23
General Rule : depositions are taken at the start of the case before the trial.
Exception : “Depositions may be taken at any time after the institution of any
action, whenever necessary or convenient. There is no rule that limits
deposition-taking only to the period of pre-trial or before it; no prohibition
against the taking of depositions after pre-trial. Indeed, the law authorizes the
taking of depositions of witnesses before or after an appeal is taken from the
judgment of a Regional Trial Court to perpetuate their testimony for use in
the event of further proceedings in the said court and EVEN during the
process of execution of a final and executory judgment.”
Meaning, deposition taking is even allowed as part of the execution where
the trial is already terminated.
Q: When you take the deposition of a deponent what can you ask? What
matters may be inquired into?
A: The law says, the deponent may be examined regarding any matter
whether related to the claim or defense of any other party.
The mode of discovery is a fishing expedition in the hope that you will
discover something in the course of a questioning.
LIMITATIONS IN DEPOSITION TAKING
Q: What are the limitations or prohibitions in deposition taking?
A: The following are the limitations in Deposition Taking:
1.) The matter inquired into is not privileged either under the rules on
evidence or special law;
2.) The matter inquired into is relevant to the subject of the pending
action;
MIRANDA NOTES BAR 2019 - Remedial Law
3.) The court may issue orders to protect the parties and its deponents
under Sections 16 or 18.
So, if you cannot ask that in a trial, you cannot also ask that in a deposition
taking.
While deposition taking authorizes a fishing expedition, you are not allowed
however, to go beyond the topic.
And the court is authorized to issue orders to protect the parties and its
deponents under Sections 16 or 18 of this Rule.
Q: In what proceedings can a deposition be used?
A: It can be used later during the trial of the case, or in supporting or opposing
the motion
Under this Rule, a party can file a motion for summary judgment to
demonstrate that the party has no cause of action. In that sense, I will support
my motions with affidavit, depositions or documents.
Q: In what proceedings may a deposition be used?
A: The following:
1.) At the trial;
2.) Upon a hearing of a motion; or
3.) Upon a hearing of interlocutory proceeding (e.g. issuance of a
writ of preliminary injunction or attachment)
Q: Against whom may a deposition be used?
A: Against the following:
1.) against any party who was present; or
24
2.) against a party who was represented at the taking of the
deposition; or
3.) against a party who did not appear or represented but was duly
notified of the scheduled deposition taking.
I will no longer present him but instead I will present as evidence his
deposition to take the place of his oral testimony in court.
A deposition can only be used for the purpose of contradicting or
impeaching the testimony of deponent as a witness. It does not exempt the
witness from testifying in court. It is only a means of knowing what the
witness will testify. – CANNOT SUBSTITUTE FOR DEPONENT’S ORAL
TESTIMONY
This is known as PRIOR INCONSISTENT STATEMENT under the rules
on evidence.
Therefore, a deposition is not a substitute for the testimony of the witness
in court. You still have to present him in court. He has to testify all over
again but at least you already have a guideline. So, if he deviates from the
deposition, you can impeach him using the deposition taken under oath
earlier.
Q: What is the difference between paragraphs [a] and [b]?
Deposition of a wtiness (a) Deposition of the party himself (b)
Only for contradicting or Can be used for any purpose
impeaching the testimony of a
deponent as a witness
The deposition of an ADVERSE PARTY is for any purposes because I can
use it to impeach or I can use it as evidence. And if a witness say something
in my favor, I cannot use it as evidence. I have to ask the witness to repeat
his statement in court. But if it is a party, I can use it as evidence already
under the rule on admission of evidence that the act or declaration of a
MIRANDA NOTES BAR 2019 - Remedial Law
PARTY maybe used as evidence against him (Rule 130, Section 26). So, that
is the difference between deposition of a party and a witness.
Q: Suppose the adverse party is a corporation
A: Under paragraph [b], you can take the deposition of any of its officers,
directors, or managing agent of the corporation.
DEATH
Under the law, his deposition will take the place of his oral testimony because
he is dead. However, if he is alive, apply paragraph [a] – you cannot substitute
his deposition to his oral testimony.
THE WITNESS RESIDES AT A DISTANCE MORE THAN ONE
HUNDRED (100) KILOMETERS FROM THE PLACE OF TRIAL OR
HEARING, OR IS OUT OF THE PHILIPPINES
I can offer as evidence his deposition to take the place of his oral
testimony. And that is allowed as exception to paragraph [a].
And if your witness is leaving for abroad, you might as well take the
deposition before it is too late, or you might end up without any witness. That
is the advantage of paragraph [c].
Q: Plaintiff filed a case against defendant. Depositions were taken. Later,
one of the parties died and there was substitution. Is there a need of taking
depositions again? Will the deposition already taken be also applicable to the
same case although the parties are now different?
A: YES. The substitution of parties does not affect the right to use
depositions previously taken.
25
Q: Jolina files a case against Maya and depositions were taken. Later,
the case is dismissed without prejudice. Jolina re-filed the case. Is it necessary
for depositions to be taken all over again?
A: NO NEED. The depositions taken in the dismissed case will still
apply to the new case. There is no need of repeating the whole process.
Q: Can you object to the evidence which is being offered during the
deposition taking?
A: YES, however the deposition officer cannot rule but the objection is
recorded. It is the judge who will rule on the objection later during the trial.
GENERAL RULE: By simply taking your deposition, it will not make you
as my witness. But once I offer your deposition in court, you are now my
witness, especially if your are dead or when you are residing more than 100
kilometers.
EXCEPTIONS: Meaning, even when I offer it in court, still it does not
make you as my witness.
1.) When I am offering your deposition to contradict or impeach you.
2.) When you offer the deposition of your opponent (adverse party), you
are not making him your witness.
A secretary of the Philippine embassy or consulate abroad is authorized to
act as deposition officer, as well as the consul general, vice-consul, although
on a SC circular, if the judge will authorize the taking of deposition abroad,
because this time leave of court is required, you course it to the Department
of Foreign Affairs. The parties are not supposed to communicate directly to
the Philippine Embassy.
: How about in places where we do not have embassy?
MIRANDA NOTES BAR 2019 - Remedial Law 26

A: Those with country where we do not have diplomatic relations, you commission has been returned
have to avail of [b]. So in this case, the person who is authorize to take the unexecuted before resorting to
deposition may be the one who is authorized by commission, or if not by letters rogatory
commission, by letters rogatory.

Q: Define letters rogatory.

A: LETTERS ROGATORY is an instrument whereby the foreign court
is informed of the pendency of the case and the name of the foreign witnesses,
and is requested to cause their depositions to be taken in due course of law,
for the furtherance of justice, with an offer on the party of the court making
the request, to do the like for the other, in a similar case. (Ballentine’s Law
Dict., 2nd Ed., p. 744)
Can a deposition be taken in Taiwan where the Philippines has no
diplomatic relations because of the one-Chine policy?
A. YES. What matters is that the deposition is taken before a
Philippine official acting by authority of the Philippine
Department of Foreign Affairs and in virtue of a commission
duly issued by the Philippine Court.

Distinguish a commission from letters rogatory.

Commission
an instrument issued by a court of
justice, or other competent tribunal,
to authorize a person to take
depositions, or do any other act by
authority of such court or tribunal.
addressed to officers
designated either by name or
descriptive title, while
LETTERS ROGATORY are
addressed to some appropriate
judicial authority in the foreign
state.”
Letters Rogatory
an instrument sent in the name and
by the authority of a judge or court
to another, requesting the latter to
cause to be examined, upon
interrogatories filed in a cause
pending before the former, a
witness who is within the
jurisdiction of the judge or court to
whom such letters are addressed
issued only after a commission has
been ‘returned unexecuted’ as is
apparent from Form 21 of the
Judicial Standard Forms appended
to the (1964) Rules of Court.” So
as a matter of practice, the court
should first resort to commission.
You must allege that the
You are disqualified to act as deposition officer if you are related to any of
the parties or the lawyer. You get somebody who is not related.
Take note that before deposition is taken, there should be notice to the
adverse party. The notice shall state the time and place for taking the
deposition and the name and address of each person to be examined.
S16 : Q: What orders may court issue for the protection of parties and
deponents; when may orders be issued; what court has power to issue the
orders?
A: After notice is served for taking a deposition by oral examination,
upon motion seasonably made by any party or by the person to be examined
and for good cause shown, the court in which the action is pending may issue
the following orders:
1.) That the deposition shall not be taken;
2.) That it may be taken only at some designated place other than
that stated in the notice;
MIRANDA NOTES BAR 2019 - Remedial Law
3.) That it may be taken only on written interrogatories;
4.) That certain matters shall not be inquired into;
5.) That the scope of the examination shall be held with no one
present except the parties to the action and their officers or
counsel;
6.) That after being sealed the deposition shall be opened only by
order of the court;
7.) That secret processes, developments, or research need not be
disclosed;
8.) That the parties shall simultaneously file specified documents
or information enclosed in sealed envelopes to be opened as
directed by the court;
9.) The court may make any other order which justice requires to
protect the party or witness from annoyance, embarrassment, or
oppression. (Section 16)
Section 16 is about protective orders BEFORE deposition taking.
Section 18 talks about protective orders DURING the deposition taking
where the court may stop or limit the deposition taking.
Q: How is deposition in oral examination taken?
A: It must be under oath. The testimony will be taken by the stenographer.
And objections must be recorded. Evidence objected to shall be taken subject
to the objections.
Q: Can the deposition officer make a ruling on the objection/s?
A: NO. He cannot. But the objection will be noted and the deponent must
answer.
27
- If the objection is sustained, the answer as recorded is erased as if it
was never answered.
TAKE NOTE : answers to depositions not objected to cannot be objected
to in court during the trial, UNLESS the objection is based on a new ground
which only come up after the deposition.
Any party can ask for a copy of the deposition upon payment of
reasonable charges therefor.
The questions are prepared already in advance and that is direct
interrogatories. And then they furnish you a copy and after receiving it, you
may also, within 10 days, prepare your questions or cross-interrogatories and
you also furnish them copies of it. And based on that, they can ask further
questions. If they are now sufficient, the deposition officer shall compound
the question one by one but every question requires an answer.
Practically, there is no personal confrontation of the witness.
If you will notice, majority of all the errors are waived if objection thereto is
not promptly made.
Rule 24 : Depositions Before Action or Pending Appeal
Q: Is there a way of taking testimony or deposition in advance even
before wala pang kaso?
A: will file a petition before the court known as Petition to Perpetuate the
Testimony of A and C.
Q: Where will you file it?
A: In the court of the place of the residence of any expected adverse party
because there is still no case.
MIRANDA NOTES BAR 2019 - Remedial Law 28

Rule 25 : Interrogatories to Parties If meron na answer – no leave of court

Under Rule 23, kukuha pa ako ng deposition officer and I will have to course
everything to him. In Rule 25, walang deposition officer.
Under Rule 25, you can only ask questions to your opponent
If wala answer – with leave of court
As I have mentioned, you are mandated by law to answer fully in writing my
questions and signed and sworn by you. As a general rule, you are given 15
days to answer my interrogatories.

In Rule 25, the questioning is direct.
Q: Distinguish INTERROGATORIES TO PARTIES (Rule 25) from
DEPOSITION UPON WRITTEN INTERROGATORIES (Rule 23).
Q: Suppose you do not want to answer my questions because you believe
my questions are improper, you want to object to my questions, what is your
remedy?
A: You go to the court where the case is pending and object. Let the court
decide whether you will have to answer or not.

Interrogatories to Parties (Rule 25) Deposition Upon Written
Interrogatories (Rule 23)
no deposition officer the deposition is taken before a
deposition officer
questioning is direct questions are prepared beforehand;
They are submitted to the
Plaintiff questions defendant, deposition officer who will ask the
defendant questions the plaintiff. deponent the questions and he will
There is no third person who will record the answers
intervene
the deposition of any person may be Applies to parties only ;
taken, whether he is a party or not, You can send interrogatories only
may be taken to parties. You cannot ask question
to a stranger.
Q: Is leave of court necessary to apply Rule 25? Do I have to apply for
a court permission before I can send interrogatories to parties?
A: IT DEPENDS. The Rule says “under the same conditions specified in
Section 1 of Rule 23.”
Q: What kind of questions can you ask under Rule 25 to your opponent?
A: The same questions that you can ask in Rule 23 section 2:
1.) anything that is related to the claim or defense provided it is
relevant; and
2.) it is not privileged.
Q: Suppose there are already answers to the interrogatories given by your
opponent, how do you use those answers?
A: They have the same uses under Rule 23 Section 4 – you can use it for
impeachment, or any other purpose like to prove an admission already made
by the adverse party.
The purpose here is to actually secure admissions from him while he is in the
witness stand because anything that he says against me does not bind me even
if I were the one who called him to the witness stand. But anything he might
say that is against himself binds him.
Rule 26 : Admission by Adverse Party
Rule 26 is also known as REQUEST FOR ADMISSION.
MIRANDA NOTES BAR 2019 - Remedial Law
The main difference between Rule 26 and Rule 25 is in the framing of the
question.
- If the question is framed in such a way that the premise is laid down
and I ask you whether or not you admit, then the question is proper
under Rule 26.
- If the question if framed in such a way that it is not answerable by
yes or no, then apply Rule 25.
Q: So, what will you request the other party to admit?
A: The genuineness of any material and relevant document described in
and exhibited with the request or of the truth in the request.
Q: Is LEAVE OF COURT required under Rule 26?
A: It is totally UNNECESSARY but a request for admission under Rule
26 can only be started according to Section 1, “At any time after issues have
been joined.” So it presupposes that there is already an answer. Unlike in
interrogatories, you can do it even before an answer is served provided there
is leave of court. This is the second difference between Rule 25 and Rule 26.
Q: So, if I send to you a request for admission, what is your duty?
A: Within 15 days, you must answer my request under oath, whether
admitting or denying my request. Take note, ‘under oath’ also, parang
interrogatories.
Q: Suppose you ignore my request within 15 days. You did not do
anything. You did not bother to file any answer to my request for admission.
What is the effect of failure to answer the request?
A: You are deemed to have admitted. There is an implied admission of
all the things that I asked you to admit. Section 2 says, each of the matters of
which an admission is requested shall be deemed unless you file your answer
to the request. Meaning, if you will not answer my request, under the law,
all the matters which I request you to admit are deemed impliedly admitted.
That is the penalty for not bothering to file your reply under Rule 26.
29
BAR QUESTION : A sends a request for admission to B and B made an
admission. However, during the trial, A did not offer in evidence the answers
to the request. Can the court take judicial notice of the answers?
A: Based on THE OLD RULES, it would seem NO because a request
for admission is purely an extrajudicial matter between the parties. But if the
same question is asked,
NOW, the answer would be YES, because under the NEW RULES, you
are already required to file and serve. Therefore the court may now take
judicial notice because it already forms part of the record.
BAR QUESTION: Suppose, I will file a case against you and I will
attach to my complaint a Promissory Note – actionable document. In your
answer, you deny the genuineness and due execution of the Promissory Note.
Meaning, as a defense you allege that your signature is forged. There was a
proper denial because it was under oath.
ANSWER: There was an old decided case where the SC seemed to imply that
even if the matter is already denied in your pleading, if it is reiterated under
Rule 26 (request for admission) it has to be denied all over again otherwise
you’re impliedly admitting it.
In the case of Po vs CA
ISSUE: Is there a need for another denial in the request for
admission?
HELD: NO NEED. When a matter is already effectively
denied in the pleading, then there is no need to ask it all over
again. In other words, what has already been denied is denied
and therefore you cannot say that for failure to deny it is already
deemed admitted.
Section 3 is for the purpose of evidence. An admission made by a party
pursuant to a request for admission in only good for that case. It cannot be
MIRANDA NOTES BAR 2019 - Remedial Law 30

used in any other case or proceeding. It limits therefore the effectivity of an

admission. It is only valid for the pending case.
Q: Distinguish Production or Inspection of Documents or Things under
Admissions made, expressly or impliedly (failure or refusal to respond) are Rule 27 from Subpoena duces tecum under Rule 21.
nevertheless binding.
Production or Inspection of Subpoena Duces Tecum
“A party who FAILS to FILE and SERVE a request for admission on the Documents or Things under
adverse party of material and relevant facts in issue which are or ought to be Rule 27
within the personal knowledge of the latter shall not be permitted to present essentially a mode of discovery a means of compelling
evidence on such facts.” (simply to discover) production of evidence which
must be brought to court;
limited to parties in the action may be directed to any person,
Service must be made directly upon the person mentioned in the law and whether a party or not;
upon no other in order for the notice to be valid.

Q: : Was there an effective answer or reply to the request for admission

as it was the lawyer who made the reply ?
A:YES, because under the Rules, a client can always act through the
lawyer and he is bound by the actuations of his lawyer. This is practically
issued only upon motion with may be issued upon an ex-parte
the rule on Agency.
notice to the adverse party application.

Principles to remember in the case of REBONERIA and PSCFC:

1. A request must be directed to the party whose admission is sought.
Service of request to any other person is not a valid request at all.
2. A request must always be directed to the party whose admission is
sought, but the latter may delegate to his lawyer the right to answer the
request. Such is valid so long as there is a valid authorization.
Rule 27 : Production or Inspection of Documents or Things
Rule 28 : Physical and Mental Examination of Persons
Rule 28 applies in all actions where the mental or physical condition of
a party is in question or controversy. EXAMPLES:
a.) annulment of marriage on the ground psychological incapacity.
Under the Family Code, however, the state of psychological
incapacity must not have been existing only now for the first
time. It must have existed at the time of the marriage;
MIRANDA NOTES BAR 2019 - Remedial Law 31

b.) annulment of marriage on the ground of impotency. The court ONLY EXCEPTION is when authorized in writing by the court
can issue an order to subject the party to undergo physical or administrator. Meaning, the judge can go to the court administrator to allow
medical examination by a doctor to test whether the allegation the court to go beyond the period allowed by law
is true or not;
c.) annulment of contract on the ground of insanity at the time of Generally, there are two main reasons why parties ask for postponement. One
execution (lack of consent); is, (1) absence of evidence like when the witness is not available or the
d.) Physical disability due to quasi-delicts (e.g. vehicular accident). document is not available, or (2) somebody is sick – either the party or
If I am the defendant and I believe that you are merely counsel is sick.
exaggerating the extent of your injury so that your claim for
damages will be higher, and diskumpiyado ako sa doctor mo, I if you want to postpone a trial on the ground of absence of evidence,
will ask the court to issue an order for you to undergo physical there must be a verified affidavit. The affidavit must show the materiality
examination by another doctor, so that we will know whether or relevancy of the evidence which is not available and that due diligence
your claim is really valid or not. was used to procure it. In other words, you tried your best to secure it
earlier.
1.) Depositions – pending action, no REQUIRED the other party may admit the evidence but object to its admissibility
answer filed yet NOT REQUIRED
- pending action, answer filed REQUIRED So you must have a sworn medical certificate and that the presence of
already such party or counsel is indispensable and the character of his witness is such
- before action or pending appeal as to render his non-attendance excusable.
2.) Interrogatories – no answer filed yet REQUIRED
- answer filed already NOT REQUIRED Now, of course the SC has already stated in some cases that when the
3.) Request for admission NOT REQUIRED sickness is sudden and unexpected such as accident, you cannot require
4.) Production or Inspection of REQUIRED on the spot a medical certificate. Meaning, how can I produce something
Documents or Things if he got sick only an hour ago? So, the court should take that into
5.) Physical and Mental Examination of REQUIRED consideration. They cannot object to the requirement of medical
Persons certificate
Rule 30 : Trial
a motion for postponement which is not verified upon the ground of illness
GENERAL RULE: Not more than one (1) month for its adjournment BUT a of a party or counsel without a medical certificate should be granted if it
maximum of three (3) postponements. In effect, it will be exactly 90 days. appears that the claim of the movant is meritorious.

Motions for postponements is always addressed to the sound discretion

of the cour
MIRANDA NOTES BAR 2019 - Remedial Law
“the trial shall be limited to the issues stated in the pre-trial order.”
The pre-trial order shall limit the issues and shall control the subsequent
course of the action. We already emphasized that the pre-trial order prevails
over the pleadings. The pre-trial order has the effect of superseding the
complaint and the answer. Whatever issues are stated in the pre-trial order
shall be the issues to be tried during the hearing on the case.
The pre-trial order will be a very important document to determine what are
the issues to be tried.
Yu vs Mapayo
By admitting the obligation, you are invoking the affirmative defense of
payment. So, it is incumbent upon you to prove that it is paid
There is nothing basically wrong with an affirmative defense being heard
ahead of the plaintiff, especially when the plaintiff has nothing to prove
anymore.
the court may even direct the accused to present evidence ahead of the
prosecution when the accused is already admitting the facts constituting
the crime but only invokes a defense such as self-defense – when you are
accused of homicide and your defense is that you acted in self-defense.
TRIAL IN REVERSE
Q: Is a party allowed to present evidence in chief in the rebuttal stage?
A: GENERAL RULE: NO, because paragraph [f] provides that the
parties may then respectively adduce rebutting evidence only. In other
words, you do not go back to paragraphs [a] and [b]. If you have evidence to
prove your cause of action or defense, you should have done it earlier.
32
it permits them to adduce evidence in chief. But you need the permission
of the court because normally, you should have done that under paragraphs
[a] and [b] and not in paragraph [f].
Q: Give instances when the court may allow the party to present
additional evidence in chief during rebuttal to prove his cause of action.
A: In the following instances:
1.) When it is newly discovered;
2.) When the evidence was omitted through inadvertence or
mistake;
3.) When the purpose is to correct evidence previously offered;
(Lopez v s. Liboro, 81 Phil. 429)
4.) When the additional evidence offered is material and not merely
cumulative or impeaching (64 C.J. 160-163)
A MEMORANDUM is practically a thesis where you will summarize
your position and you argue why you should win. That is where you cite
evidence. You convince the court that you have proven your cause of
action or defense. Then you cite the testimonies, the exhibits, the
transcripts and of course, the argument, the jurisprudence, the law.
There, you only state the facts. You argue after the trial where you interpret
now the evidence and convince the court.
present evidence 1, 2, 3, 4. What is the purpose there? To prove facts.
Normally, we cannot agree on the facts.
Q: Now, is there a possibility that the court will decide whether there is trial
or no more evidence?
A: YES! If the parties agree in writing upon the facts involved in the litigation
and they will submit the agreed facts or the case for decision. That is what
we call JUDGEMENT ON AGREED STATEMENT OF FACTS or the more
popular term: JUDGEMENT BASED ON STIPULATION OF FACTS.
MIRANDA NOTES BAR 2019 - Remedial Law
if the parties agree in writing upon the facts involved in the litigation and they
will submit the agreed facts for decision, that is JUDGEMENT BASED ON
STIPULATION OF FACTS which is encouraged by the law. This is one of
the purposes of Pre-Trial (Rule 18, Section 2 [d]) where the parties are
encouraged to stipulate on facts, because really, it would save a lot of time.
Q: Why is an agreed statement of facts sufficient basis for a judgment?
A: The reason is that an agreed statement of facts is conclusive on the
parties, as well as on the court. Neither of the parties may withdraw from the
agreement, nor may the court ignore the same. (McGuire vs. Manufactures
Life Ins. Co., 87 Phil. 370)
Q: Now suppose they can agree on some facts but they cannot agree on
others.
A: There is no problem. You can have a partial stipulation of facts and
then we can try the rest with respect to the other disputed facts.
Any statement made by the judge with reference to the case or to any of the
parties, witnesses, or counsel shall be made of record in the stenographic
notes.
According to Article 2030 of the civil code, if at anytime while the case is
going on, one of the parties would like to discuss a POSSIBLE AMICABLE
SETTLEMENT OR COMPROMISE, they can ask for the suspension of
proceedings.
So at anytime that one party expresses its desire to settle, even in the middle
of the case, the court is authorized to suspend the action to give the parties
opportunity to settle because of the policy of the law to encourage the parties
to settle amicably.
33
The dismissal is WRONG. “Since there is nothing in the Rules that imposes
the sanction of dismissal for failing to submit a compromise agreement, then
it is obvious that the dismissal of the complaint on the basis thereof amounts
no less to a gross procedural infirmity.
Failure to consummate one does not warrant any procedural sanction, much
less an authority to jettison a civil complaint. What the court should have
done was to continue the action
Q: What are the matters that cannot be the subject of compromise?
A: Under the Article 2035, New Civil Code, the following:
(1) The civil status of persons; (whether legitimate or illegitimate)
(2) The validity of a marriage or a legal separation; (w/n a marriage
settlement exists)
(3) Any ground for legal separation;
(4) Future support; (always depends on the means of the party
giving support)
(5) The jurisdiction of courts;
(6) Future legitime.
The Rules now expressly allows the court to delegate the reception of
evidence to the clerk of court who must be a member of the bar.
That the judge cannot delegate the reception of evidence to the clerk of court.
Now, puwede na.
Yun iyong mga out of ordinary cases which are really controversial
where the court should require the presentation of evidence. Pero yong mga
kaso na not so complicated, no need of reception of evidence in order to
expedite the process of adjudication.
Rule 31 : Consolidation or Severance
MIRANDA NOTES BAR 2019 - Remedial Law 34

Consolidation of Civil Actions Consolidation of Criminal Actions

In other words, there must be a connection somewhere between the rule on one or more causes of action may
Consolidation of actions in Rule 31, with the rule on Permissive Joinder of be embodied in one complaint
Parties in Rule 3. because when there is permissive
joinder, there is automatic
consolidation also
Q: But suppose the 30 passengers were injured and after their discharge from opposite of consolidation is
the hospital the 30 of them hired separate lawyers.? severance under Section 2
A: There can be no joinder of parties. You cannot join the parties in one
complaint because each plaintiff is represented by a different lawyer.
only one offense can be the subject
of one complaint or information.
consolidation of criminal actions is
exclusively for joint trial;
opposite of consolidation is
separate trial. In reality, there is
actually no consolidation of
criminal cases. There is only joint
trial of criminal cases.

Q: Can the 30 cases be joined together para isang judge na lang? Q: What happens if na-una na-file yung civil action?
A: According to Section 2, Rule 111 from the moment the criminal case
A: YES. The lawyer for the bus company can file a motion under Rule 31, is filed, the trial of the civil case is suspended to wait for the outcome of the
Section 1 to consolidate the actions. criminal case.

The purpose of consolidation is to achieve the same effect of permissive
joinder of parties under Rule 3, Section 6.
You cannot consolidate because they are pending in different courts in
different provinces. The law says it must be in the same court.
Q: Distinguish Consolidation of civil actions from Consolidation of criminal
actions.
Q: Can you file one complaint or information
embodying two or more crimes?
A: NO. You cannot. That is what you call duplicitous
complaint or information. There is no such thing as joinder
of crimes. Therefore, the so-called consolidation of
criminal actions is not actually filing one information but it
is only for the purpose of joint trial.
Q: Is this prejudicial to the offended party? What is the remedy of the
offended party?
A: There is a way out according to Section 2, Rule 111. The first thing
for him to do is to file a petition to consolidate the trial of the criminal and
civil case for them to be tried together and the evidence already presented in
the civil case is deemed automatically reproduced in the criminal case. This
is what you call the consolidation of the civil and criminal action under
Section 2, Rule 111:
Q: Is this consolidation mandatory?
A: NO. It is permissive. Actually, the offended party is the one to initiate
this because if not, then he has to wait for the criminal case to be terminated
before he can file the civil case.
MIRANDA NOTES BAR 2019 - Remedial Law 35

ISSUE #1: Was the consolidation proper?
HELD: The order of consolidation is correct. Rule 31, Section 1 allows
the consolidation of a criminal and civil case because of the fact that
there is a common question of fact or law between them and that they
are pending before the same court. As a matter of fact, before the same
judge.
ISSUE #2: How do you reconcile these cases because the degree of proof
in the criminal case is not the same in the civil case?
When the commissioner files his report with the court, the court will now
schedule it for hearing. The parties will be furnished copies and during the
hearing, if you do not agree with the report, you can present objections thereto
or criticize the report. You can defend or attack it. The court will then
determine whether to accept the report or not.
That’s why under Section 11, the court shall issue an order adopting,
modifying, rejecting the report, in whole or in part, or recommitting
(ibalik) it to the commissioner with instruction, or requiring the parties
to present further evidence.

HELD: The consolidation was proper under Rule 31 because there is a

common question of fact and law. They can be consolidated but for
purposes of decision, the court will now apply two (2) different criteria:
Proof beyond reasonable doubt in the criminal case and preponderance
of evidence in the civil case. So there is no incompatibility.

Q: Give other examples of trial by commissioner.

A: The following:
1.) Special Civil Action of Expropriation under Rule 67 – when the
court has to determine just compensation. Under Rule 67, it is
mandatory for the court to appoint a commissioner in order to
determine as to how much the value of the property;
2.) Special Civil Action of Partition under Rule 69. When the heirs
cannot agree on how to partition a property under co-
ownership, the court may appoint a commissioner to study and
submit its report.

Court rendering the judgment but also for the purpose of carrying a
judgement or order into effect.

The Commissioner is the assistant Judge