Motions Sec 4. Hearing of Motion: Pro Forma Not

CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y.
2015-2016
MOTIONS SEC 4. HEARING OF MOTION
RULE 15 – MOTIONS IN GENERAL HEARING OF MOTION

Except for motions which the court may act upon without prejudicing
SEC 1. MOTION DEFINED the rights of the adverse party, every written motion shall be set for
hearing by the applicant.
MOTION DEFINED
A motion is an application for relief other than by a pleading. Every written motion required to be heard and the notice of the hearing
“Other than by a pleading” – A motion is not considered a pleading. thereof shall be served in such a manner as to ensure its receipt by the
The pleadings are enumerated in Rule 6. (i.e. complaint, third party other party at least 3 days before the date of hearing, unless the court
complaint, and reply) for good cause sets the hearing on shorter notice.
TN: A motion is not included in the enumeration which is why it is not considered Hearing is required only for litigable motions
a pleading. However, in the strict sense of the word, a motion actually really is a There is no need for hearing in motions that are non-litigable, such as
pleading since you are asking a relief from the court.
in cases of emergency or accident for they must be granted or denied
right away (ex-parte or urgent motions)
Q. What are the requisites of a valid motion?
Sections 2-6, Rule 15 Two kinds of motions:
A. It must be in writing 1. Litigable motions – need further hearing
B. It must state the relief sought for and the grounds upon which it is 2. Non-litigable – no need for further hearing; can be resolved in that
based instant
C. It must be set for hearing
D. There must be notice of hearing to the other party The motion must be set not beyond 10 days from filing
E. There must be proof of service to the other party Normally the motions are heard on Friday afternoons, but can actually
be set on any working day like when the motion is urgent.
TN: All these requisites are mandatory. When you file a motion, you
must have complied with all, otherwise, the motion will be treated as a Q. Who sets the date of the hearing?
pro forma motion – mere scrap of paper and does not produce any legal The movant must set it for a particular date on a particular time.
effect. The filing of such will not stop the running of the prescriptive However, although the movant sets the date of hearing, it is still
period to appeal. discretionary for the court to grant or deny the request for the hearing
date. Regardless, you still have to put that date in the motion for
Example: compliance sake.
The court rendered a decision adverse to you. Instead of appealing, you filed a
motion for reconsideration. But the motion you filed is pro forma since you did not
set it for hearing. The effect is that the running of the prescription to appeal is not
Q. Should the other party be served of the motion?
tolled. Yes. 2nd par, Section 4. The rule is that, you must see to it that the other
party receives the copy of the motion, 3 days before the date of the
SEC 2. MOTIONS MUST BE IN WRITING hearing, unless the court for good cause sets the hearing on shorter
notice.
MOTIONS MUST BE IN WRITING
All motions shall be in writing except those made in open court or in the SEC 5. NOTICE OF HEARING
course of a hearing or trial.
NOTICE OF HEARING
GR: All motions must be in writing The notice of hearing shall be addressed to all parties concerned, and
shall specify the time and date of the hearing which must not be later
XPN: Those made in open court or in the course of a hearing or trial
than ten (10) days after the filing of the motion.
since it is recorded.
Examples of motions made is open court: Notice of hearing must be addressed to the other party
 You do not address it to the Clerk of Court.
1. Motion for continuance during hearing
It’s already 12:00 noon. Can I move for the continuance of the case on
 The other parties must be notified either by personal or registered
another date, gutom na.” mail.
 The clerk of court will always check if you have placed a notice for
2. Motion for the exclusion of witnesses hearing addressed to the other party
The plaintiff needs to present evidence and the plaintiff’s lawyer will present
4 witnesses. The defendant’s lawyer may motion the court that the 3 other
witnesses be excluded even while the one is talking in the witness stand.
SEC 6. PROOF OF SERVICE NECESSARY
What he said may be taken down in writing. PROOF OF SERVICE NECESSARY
No written motion set for hearing shall be acted upon by the court
SEC 3. CONTENTS without proof of service thereof.
CONTENTS Proof of Service
A motion shall state the relief sought to be obtained and the grounds  Receipt is needed if by registered mail (registry receipt)
upon which it is based, and if required by these Rules or necessary to  Signature of the lawyer of the other party for personal service is
prove facts alleged therein, shall be accompanied by supporting required
affidavits and other papers.  Show to the court that you have notified the party of this motion
Q. What must the motion contain?
1. The specific reliefs sought for and sufficient grounds relied upon SEC 7. MOTION DAY
by the relief.
2. In case of motion for new trial and motion to lift the order of MOTION DAY
default – must also contain supporting affidavit of merit Except for motions requiring immediate action, all motions shall be
3. The reason why the motion should be granted which must also scheduled for hearing on Friday afternoons, or if Friday is a non-working
be discussed day, in the afternoon of the next working day.
1|U N I V E R S I T Y O F S A N C A R L O S
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
Q. When is motion day? RULE 16 – MOTION TO DISMISS

Friday afternoons. If Friday is a non-working day, in the afternoon of
the next working day (Monday possibly). MOTION TO DISMISS
TN: But must not be more than 10 days after the service of motion. (Section 5) A motion to dismiss is a litigable motion and must always be set for a
hearing. It is considered to be a preliminary objection (no answer but
you’re already filing something) filed after the initiatory pleading.
SEC 8. OMNIBUS MOTION
OMNIBUS MOTION When the defendant receives summons and complaint, the defendant is
Subject to the provisions of section 1 of Rule 9, a motion attacking a supposed to answer the complaint in 15 days. But the defendant may
pleading, order, judgment, or proceeding shall include all objections not answer right away and file a motion to dismiss instead.
then available, and all objections not so included shall be deemed
waived. Q. When to file a motion to dismiss?
Within the period to answer (15 days)
Omnibus Motion Rule
When you file a motion, put all the available grounds albeit inconsistent. Q. Can he file beyond the 15 day period?
All the grounds available to you should be included in a motion to Yes. He can file even after the 15 days or even for the first time on
dismiss. appeal if the grounds are those exceptions mentioned – those that are
never deemed waived.
Grounds not raised are deemed waived A. Prescription
You cannot file motions in piecemeal or one ground per motion. B. Res judicata
Otherwise, the other grounds you did not put will be deemed waived. A C. Litis pendentia
motion is like an octopus, with each tentacle as a ground. Those not D. Lack of jurisdiction over the subject matter
raised will be considered cut-off.
TN: But remember that there are grounds which can never be deemed waived SEC 1. GROUNDS FOR A MOTION TO DISMISS
even if not raised in the motion.
GROUNDS
Grounds not deemed waived even if not raised Within the time for but before filing the answer to the complaint or
1. Lack of Jurisdiction over the subject matter pleading asserting a claim, a motion to dismiss may be made on any of
2. Prescription the following grounds:
3. Res Judicata (a) That the court has no jurisdiction over the person of the defending
4. Litis Pendentia party
(b) That the court has no jurisdiction over the subject matter of the
SEC 9. MOTION FOR LEAVE claim
(c) That venue is improperly laid
MOTION FOR LEAVE (d) That the plaintiff has no legal capacity to sue
A motion for leave to file a pleading or motion shall be accompanied by (e) That there is another action pending between the same parties
the pleading or motion sought to be admitted. for the same cause; (Litis pendentia)
(f) That the cause of action is barred by a prior judgment or by the
Motion for Leave of Court statute of limitations (Res Judicata and Prescription)
A motion for leave of court must already be accompanied by the (g) That the pleading asserting the claim states no cause of action
pleading or motion sought to be admitted. (h) That the claim or demand set forth in the plaintiff's pleading has
been paid, waived, abandoned, or otherwise extinguished
Example: If you want to file a motion for leave of court to amend the (i) That the claim on which the action is founded is unenforceable
complaint, you must already include your amended complaint. under the provisions of the statute of frauds, and
TN: This is why the period to file an answer to an amended complaint is just 10 (j) That a condition precedent for filing the claim has not been
days because when you file a motion for leave of court, you already include the complied with
amended complaint. The defendant has to wait for the court to deny or approve
the amended complaint in which case he already has the extra time to study the 1st. COURT HAS NO JURISDICTION OVER THE PERSON OF THE
same. 10 days is already enough since he is already given extra time to study the
amended complaint.
DEFENDING PARTY
GR: Service of summons acquires jurisdiction over the person of the
Effect of failure to comply defendant.
If the motion for leave is not accompanied by the pleading sought to be TN: No summons and improper summons – no jurisdiction over the person of the
admitted, the court will not act on your motion. It will be again be defendant
considered a pro forma motion. XPN: If he voluntarily submits himself to the court even if he is not yet
served with summons.
SEC 10. FORM
A. Waiver
FORM 1. Voluntary appearance
The Rules applicable to pleadings shall apply to written motions so far 2. Filing a pleading, i.e. extension to file an answer
as concerns caption, designation, signature, and other matters of form. 3. Entering into a compromise agreement
B. When the court issues alias summons instead of dismissing the
case
Linger and Fisher Case
If dismissal is based on the ground of improper service of summons, then
let the court serve an alias summons and let the sheriff serve it properly. It
is the mistake of the sheriff and not of the plaintiff. The court should not
dismiss the complaint right away. If the person is not yet served summons,
then serve the summons again properly. This is the weakest ground since it
can easily be corrected.
De Midgely v. Ferandos 3. The relief must be founded on the same facts

TN: ABANDONED RULING 4. The identity in these particulars should be such that any judgment
which may be rendered on the other action will, regardless of which
If the defendant questions the jurisdiction of the court on the ground of party is successful, amount to res judicata in the action under
invalid service of summons, he may do so by way of special appearance. consideration.
However, if the same motion also raised other grounds of a motion to
dismiss, such special appearance will be of no avail and the party is TN: This simply means that regardless of who wins in the first case, the
deemed to have admitted himself to the jurisdiction of the court because effect is that res judicata will result in the second case
in which case, you are already asking of affirmative relief. Teodoro v. Mirasol
When there is litis pendentia, it does not necessarily follow that the second
La Naval Case case filed must be dismissed.
TN: CONTROLLING RULING
Difference between litis pendentia and forum shopping
If you file a motion to dismiss based on ground number 1, you should They are basically the same. But forum shopping is the act of filing
do it by way of special appearance. The motion for a special appearance several cases of the same cause of action in different salas to obtain
is purposely to question the jurisdiction of the court because of improper favorable judgment or handling of the case. Litis Pendentia occurs when
service of summons. Therefore, you are not precluded from including you forum shop and two of the cases you filed are actually heard and
other grounds especially because of the omnibus motion rule. pending on different courts. This is the ground to dismiss.
In other words, inclusion of other grounds aside from lack of jurisdiction A certificate of non-forum shopping is designed precisely to prevent litis
over the person of the defendant is not tantamount to submission to the pendentia from ever occurring.
jurisdiction of the court.
6th. THE CAUSE OF ACTION IS BARRED BY PRIOR JUDGMENT
2nd. COURT HAS NO JURISDICTION OVER SUBJECT MATTER OR BY STATUTE OF LIMITATION
This can be resolved by the court simply by looking at the allegations in
the complaint and see whether the court has jurisdiction of the subject Two grounds referred to:
matter. This is especially true since jurisdiction is conferred by law. 1. Res judicata
2. Prescription
Not deemed waived even if not raised in the motion to dismiss
If you did not include it in the motion to dismiss, you can include it in Litis Pendentia v. Res Judicata
the answer by way of a special defense. You can even raise this ground They are the same in the sense that they are both the same cases
any time, even for the first time on appeal. pending in different courts. The difference is that in Litis Pendentia,
the case has not been decided yet, merely pending. In res judicata,
GR: The ground of lack of jurisdiction over the subject matter may be the other case has already been decided.
raised anytime, even for the first time on appeal.
7th. FAILURE TO STATE A CAUSE OF ACTION
XPN: When there is unreasonable delay in raising the issue by reason of To determine if there is cause of action, the court will only rely on what
estoppel by laches. (Tijam v. Sibonghanoy – raised for the first time in is alleged in the complaint and nothing more.
the Supreme Court)
The court will ask itself this question in deciding to dismiss:
TN: In subsequent rulings, it was said that the Tijam v. Sibonghanoy ruling was
not intended to be the rule and should only be applied in exceptional cases of
“Assuming that all the allegations are true, does it state a valid cause of
unreasonable delay. Laches does not have a fixed number of years unlike action? Do all of the elements of a valid cause of action exist?”
prescription.
TN: No need for hearing.
3rd. IMPOROPER VENUE
The case was filed in the correct court but in the wrong venue. 8th. PLAINTIFF’S CLAIM HAS ALREADY BEEN PAID, WAIVED,
ABANDONED OR OTHERWISE EXTINGUISHED
Example: Filed an accion publiciana case in RTC Cebu involving a This can be applied especially on collection of sum of money but it has
property located in Mandaue. Both have jurisdiction over the nature of already been paid or otherwise extinguished
the action, but there is improper venue.
Reverse trial
TN: RTC is the proper court, but the proper venue is RTC Mandaue.
If this is your ground, there is no need to even let the plaintiff present
evidence. There will be a reverse trial. Since you already admitted that
4th. PLAINTIFF’S LACK OF LEGAL CAPACITY TO SUE
you paid, it follows that you also admitted that there is a debt and now
you have to prove that you in fact paid instead of the plaintiff proving
Two types of lack of legal capacity to sue:
that you have not.
1. Plaintiff does not possess the necessary qualifications to appear at
the trial (i.e. minor or insane)
9th. THE CLAIM UNENFORCEABLE UNDER THE STATUTE OF
FRAUDS
2. Plaintiff does not have the character or representation which he
There are certain contracts that must be in writing under the Statute of
claims such (i.e. agent or guardian without the required authority
Frauds in order to be enforced or proved in court.
from the real party in interest) Reason: We cannot all the time rely on the memory of man.
Example: The litigant claims to be the attorney in fact but there is no SPA
Effect of failure to put in writing
5th. LITIS PENDENTIA Contracts that need to be in writing but were not cannot be proven using
Another action is pending between the same parties for the same cause parol evidence. They are still valid, only that, not enforceable in courts,
of action. This presupposes that there is another case that is pending, unless there is already partial execution/performance.
these two cases are also identical.
Examples of transactions that must be in writing:
Elements of Litis Pendentia 1. Actions that cannot be done within one year
1. Same identity of parties between the two actions 2. If it involves personal property or money where the value is more
2. Same identity of the rights asserted and the relief prayed for than P500
3. A promise in consideration of marriage other than the promise to Q. Can the plaintiff still amend the complaint as a matter of
marry right even if there is a motion to dismiss filed?
4. Contract of lease for more than 1 year Yes. The plaintiff can still amend the complaint as a matter of right even
if there is already a motion to dismiss filed by the defendant because a
10th. CONDITION PRECEDENT FOR THE FILING OF CLAIM HAS motion to dismiss is not a responsive pleading.
NOT BEEN COMPLIED WITH
Examples of condition precedent: SEC 4. TIME TO PLEAD
1. Exhaustion of administrative remedies
TIME TO PLEAD
2. Barangay conciliation
If the motion is denied, the movant shall file his answer within the
3. Suit between members of the same family exerted earnest effort
balance of the period prescribed by Rule 11 to which he was entitled at
to settle the matter amicably
the time of serving his motion, but not less than five (5) days in any
TN: Must be indicated in the complaint that the condition precedent has been event, computed from his receipt of the notice of the denial. If the
complied with, otherwise it will be a ground to dismiss. pleading is ordered to be amended, he shall file his answer within the
period prescribed by Rule 11 counted from service of the amended
SEC 2. HEARING OF MOTION pleading, unless the court provides a longer period.
HEARING OF MOTION When to plead if motion is denied
At the hearing of the motion, the parties shall submit their arguments If the motion to dismiss is denied, defendant has to file his answer within
on the questions of law and their evidence on the questions of fact the balance of the period prescribed by Rule 11 to which he was entitled
involved except those not available at that time. Should the case go to at the time of serving his motion, but not less than 5 days in any event.
trial, the evidence presented during the hearing shall automatically be
part of the evidence of the party presenting the same. Take note:
A. You cannot appeal because a decision denying a motion to dismiss
Hearing of the Motion to Dismiss is an interlocutory order
The court requires the movant to present evidence in support of his B. However, you can file a petition for certiorari via Rule 65 if there
motion to dismiss. The movant is allowed to present evidence to was grave abuse of discretion
substantiate his claim.
SEC 5. EFFECT OF DISMISSAL
However, he is not allowed to present evidence (no need for hearing)
if the ground he relied on are: EFFECT OF DISMISSAL
A. Lack of jurisdiction over the subject matter Subject to the right of appeal, an order granting a motion to dismiss
B. Complaint states no cause of action based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the
refiling of the same action or claim.
TN: Movant need not present evidence when using these grounds because they
can be resolved by the court based solely on the allegations of the complaint. Effect of order of dismissal
SECTION 3. RESOLUTION OF MOTION  The plaintiff may appeal the dismissal or refile the case if the
ground for dismiss are 1,2,3,4,5,7,10.
RESOLUTION OF MOTION
 But if dismissal is based on 6,8,9, cannot refile anymore
After the hearing, the court may dismiss the action or claim, deny the
(a) Res Judicata or Prescription
motion, or order the amendment of the pleading. The court shall not
(b) Claim has already been paid
defer the resolution of the motion for the reason that the ground relied
(c) Claim is Unenforceable
upon is not indubitable. In every case, the resolution shall state clearly
and distinctly the reasons therefor.
Q. How to refile?
After they filed the answer, the court can:
Ground How to refile
A. Deny
B. Grant 1st. No jurisdiction over the person Make sure service of summons is
C. Require the plaintiff to amend the complaint of the defendant proper
D. Court may defer if the grounds relied upon if the grounds
Make sure you have sufficient
appear doubtful or unclear (old rule – not applicable now) 2nd. No jurisdiction over the subject allegations in your complaint that
matter would support the jurisdiction of
Effect if motion to dismiss is denied
the court over the subject matter
 A decision denying a motion to dismiss is an interlocutory order,
hence, it cannot be appealed 3rd. Venue is improperly laid File in the proper venue
 Defendant may file an answer within the balance of the 15 days 4th. No legal capacity to sue Get proper authority
that was suspended as provided under Rule 11, but in no case shall
5th. Litis pendentia Can refile if first case is
the balance of the period be below 5 days
dismissed
 Defendant may file a petition for certiorari or prohibition (grave
6th. Res judicata and prescription Cannot refile
abuse of discretion)
7th. Claim has no cause of action Amend the complaint
Effect if motion to dismiss is granted
 The case will end 8th. Claim has been extinguished Cannot refile
 Plaintiff may appeal the case because a decision granting a motion 9th. Claim is unenforceable Cannot refile
to dismiss is a final order
 Plaintiff may refile the case, except if the grounds invoked to 10th.
Non-compliance with Comply with the conditions
dismiss the original complaint are: conditions precedent precedent
A. Res Judicata or Prescription
B. Claim has already been paid
C. Claim is Unenforceable
Two dismissal rule

SEC 6. PLEADING GROUNDS AS AFFIRMATIVE DEFENSES
Refers to a rule that a notice of voluntary dismissal operates as an
PLEADING GROUNDS AS AFFIRMATIVE DEFENSES adjudication on the merits when it is filed by a plaintiff who has already
If no motion to dismiss has been filed, any of the grounds for dismissal dismissed the same claim in another court.
TN: The second time you ask the court to dismiss your action, you need leave of
provided for in this Rule may be pleaded as an affirmative defense in court if you want to refile your case.
the answer and, in the discretion of the court, a preliminary hearing may
be had thereon as if a motion to dismiss had been filed.
SEC 1. DISMISSAL UPON MOTION OF PLAINTIFF
The dismissal of the complaint under this section shall be without DISMISSAL UPON MOTION OF PLAINTIFF
prejudice to the prosecution in the same or separate action of a Except as provided in the preceding section, a complaint shall not be
counterclaim pleaded in the answer. dismissed at the plaintiff's instance save upon approval of the court and
upon such terms and conditions as the court deems proper. If a
Pleading grounds as affirmative defense counterclaim has been pleaded by a defendant prior to the service upon
You may file a motion to dismiss but it can be easily corrected by the him of the plaintiff’s motion for dismissal, the dismissal shall be limited
other party by amending the complaint. It is better to just file an answer to the complaint.
right away and include the ground for the motion to dismiss as a special
affirmative defense. The dismissal shall be without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action unless within fifteen (15)
In which case, the plaintiff cannot easily amend his complaint and the days from notice of the motion he manifests his preference to have his
defenses are just the same. Besides, when you file your answer you can counterclaim resolved in the same action. Unless otherwise specified in
always ask the court for a preliminary hearing for your special affirmative the order, a dismissal under this paragraph shall be without prejudice.
defense. If you can prove the special affirmative defenses in court, then A class suit shall not be dismissed or compromised without the approval
there is no need to go through the whole trial. of the court.
TN: Preliminary hearing is different from pre-trial. Preliminary hearing is actually a TN: DISMISSAL AS A MATTER OF DISCRETION.
hearing of your motion to dismiss that is incorporated in your answer that you
wanted to be heard first. When a matter of judicial discretion
When the answer was already received by the plaintiff.
RULE 17 – DISMISSAL OF ACTIONS
Effect of grant of dismissal as regards the counterclaim of the
DISMISSAL OF ACTIONS defendant
If the motion to dismiss is granted by the court, the dismissal of the
Q. What is the difference between Rule 16 and Rule 17?
action will not include the counterclaim of the defendant. It is the option
 Dismissal in Rule 16 – at the instance of the defendant of the defendant to whether to hear the case in the same court or file
the counterclaim as another separate case in another court.
 Dismissal in Rule 17 – at the instance of the plaintiff
a. Matter of right (Sec 1)  If compulsory counterclaim – counterclaim will have to heard in
b. Matter of judicial discretion (Sec 2) the same court
SEC 1. DISMISSAL UPON NOTICE BY PLAINTIFF Q. Is the dismissal with prejudice to the refiling of the case?
No, the plaintiff can still re-file the case, unless the order of dismissal
DISMISSAL UPON NOTICE BY PLAINTIFF provides otherwise.
A complaint may be dismissed by the plaintiff by filing a notice of
dismissal at any time before service of the answer or of a motion for SEC 3. DISMISSAL DUE TO FAULT OF PLAINTIFF
summary judgment. Upon such notice being filed, the court shall issue
an order confirming the dismissal. Unless otherwise stated in the notice, DISMISSAL DUE TO FAULT OF PLAINTIFF
the dismissal is without prejudice, except that a notice operates as an If, for no justifiable cause, the plaintiff fails to appear on the date of the
adjudication upon the merits when filed by a plaintiff who has once presentation of his evidence in chief on the complaint, or to prosecute
dismissed in a competent court an action based on or including the same his action for an unreasonable length of time, or to comply with these
claim. Rules or any order of the court, the complaint may be dismissed upon
motion of the defendant or upon the court's own motion, without
TN: DISMISSAL AS A MATTER OF RIGHT. prejudice to the right of the defendant to prosecute his counterclaim in
the same or in a separate action. This dismissal shall have the effect of
When a matter of right an adjudication upon the merits, unless otherwise declared by the court.
1. When there is no answer yet filed by the defendant.
2. Even if there is an answer but not yet received by the plaintiff TN: THIS DISMISSAL IS DONE ONLY AT THE INSTANCE OF THE COURT.
3. When there is no motion for summary judgment yet
Grounds for dismissal due to fault of the plaintiff
Q. How is it done? 1. When plaintiff fails to appear on the date of the presentation of his
By filing a notice of dismissal. evidence in chief
TN: Notice of dismissal is sent to the court only. The court will have to grant the  Usually the court will not dismiss it right away. It will move the hearing
same since it is still a matter of right. to another date, warning the plaintiff that the next time, it will dismiss
the case
Q. Is the dismissal with prejudice to the refiling of the case?  Not every instance of absence of the plaintiff can be a ground. If the
GR: No. The dismissal is without prejudice to the refiling of the plaintiff plaintiff has presented evidence or testified already, he need not attend
of the case. the subsequent hearing.
XPNs:
2. When plaintiff fails to prosecute his case for an unreasonable
1. When the order of dismissal provides otherwise
length of time
2. Two dismissal rule
 It must be the plaintiff or his counsel to file the motion for hearing since
latter is interested to move the case
 If you do not do anything to move your case, the court will dismiss your E. The limitation of the number of witnesses.
case
 However, based on the new ruling it is no longer mandatory for the F. The advisability of a preliminary reference of issues to a
plaintiff to set it for pre-trial, the clerk of court may do so commissioner.
 But if the plaintiff is dilly-dallying in the prosecution, then it may be a
 Only resort to this if there are matters that the judge cannot resolve
ground to dismiss the case
because he needs an expert opinion
 Example: The court ordered the plaintiff to help the court locate the
 Commissioner will determine the facts
defendant to serve the summons, and the plaintiff did not do anything
 Example: Such as in a case involving boundaries of land – geodetic
nor did the plaintiff return to the court, then this could be interpreted as
engineer; Review books of accounts by referring to an accountant
2nd ground.
G. The propriety of rendering judgment on the pleadings, or
3. When plaintiff fails to comply with the rules of Court or any order summary judgment, or of dismissing the action should a valid
of the court for no justifiable reason or case. ground therefor be found to exist.
The ground provides that it must be for no justifiable reason. So if the order  Whether or not there really is an issue to be heard with a hearing or
of the court is not valid, there is justifiable reason. For example, if the plaintiff can it be resolved based on the pleadings.
dies and the court says to amend the complaint to include the heirs. This is
 Happens when the answer of the defendant:
not a valid order, this is wrong, what should have been done was a
1. Fails to tender an issue; or
substitution of parties. So you can refuse to follow order.
2. Otherwise admits the allegations of the complaint
Example: If the case is for collection of sum of money, and the
SEC 4. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, ETC. answer admits the debt but the defense is just that the defendant
does not have the necessary funds yet. This is not a valid
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, OR THIRD- defense.
PARTY COMPLAINT
The provisions of this Rule shall apply to the dismissal of any H. The advisability or necessity of suspending the proceedings.
counterclaim, cross-claim, or third-party complaint. A voluntary This is in the case were amicable settlement cannot be had yet, parties
dismissal by the claimant by notice as in section 1 of this Rule, shall be needed more sufficient time to settle the matter
made before a responsive pleading or a motion for summary judgment I. Such other matters as may aid in the prompt disposition of the
is served or, if there is none, before the introduction of evidence at the action.
trial or hearing.
SEC 3. NOTICE OF PRE-TRIAL
RULE 18 – PRE-TRIAL
NOTICE OF PRE-TRIAL
PRE-TRIAL The notice of pre-trial shall be served on counsel, or on the party who
The stage in the litigation of action where the parties are called by the has no counsel. The counsel served with such notice is charged with the
court in a conference to find avenue of amicable settlement of the case. duty of notifying the party represented by him.
There must be a written notice of pre-trial

SEC 1. WHEN CONDUCTED
Before pre-trial, there must be written notice of pre-trial provided for by
WHEN CONDUCTED the clerk of court and sent to the lawyers of both parties.
After the last pleading has been served and filed, if shall be the duty of
the plaintiff to promptly move ex parte that the case be set for pre-trial. GR: Notice to the lawyer is notice to the client.
XPN: If there is a gross negligence on the part of the lawyer that
Q. When shall pre-trial be conducted? deprived the right of the client to due process.
Pre-trial shall be conducted after all the issues are joined (issues are
joined when last pleading is filed) SEC 4. APPEARANCE OF PARTIES
TN: At least complaint or answer is filed, the issues can be identified for resolution,
hence, can be joined.
APPEARANCE OF PARTIES
It shall be the duty of the parties and their counsel to appear at the pre-
SEC 2. NATURE AND PURPOSE trial. The non-appearance of a party may be excused only if a valid cause
is shown therefor or if a representative shall appear in his behalf fully
NATURE AND PURPOSE authorized in writing to enter into an amicable settlement, to submit to
The pre-trial is mandatory. The court shall consider: alternative modes of dispute resolution, and to enter into stipulations or
admissions of facts and of documents.
A. The possibility of an amicable settlement or of a submission to
alternative modes of dispute resolution. Appearance of parties in pre-trial
 Usually the very first thing the judge wants GR: Presence of parties and their lawyers is mandatory
 The court should always give them all the chances to settle the case
 The policy is to settle amicably to help unclog the court’s dockets XPNs: The appearance of parties may be excused when:
 If there is settlement, it will be sent for approval to the court, then 1. There is valid or justifiable reason for his absence (e.g. sickness)
renders the Judgment by Compromise accordingly
 The judge can even suspend the hearing for three months just for the
2. He authorized a representative to appear for him (e.g. attorney-
parties to settle in-fact)
B. The simplification of the issues. In case of authorized representative

C. The necessity or desirability of amendments to the pleadings. In the party is a natural person
The person authorized must be clothed with proper authority to enter
D. The possibility of obtaining stipulations or admissions of facts and into settlement and stipulation of facts.
of documents to avoid unnecessary proof. TN: SPA is not enough. It must be written authority to settle the case
 Both parties shall agree on the facts amicably and to enter into any of the alternative modes of resolution.
 If they agree, there is no need to present evidence to establish such
fact It must be full authority in the:
 Only the disputed facts shall be resolved by evidence during the 1. Settlement of facts
hearing
2. Admission of facts limit the issues to be tried. The contents of the order shall control the
3. Entry into settlement agreement subsequent course of the action, unless modified before trial to prevent
manifest injustice.
If the party is a corporation
The authority must be through a Board resolution Record of Pre-trial
A. Could be president or general manager The proceeding for pre-trial shall be recorded, summarized, and
B. The board resolution must also grant the authorized person to thereafter the court will issue the pre-trial order.
discuss settlement of the case
Q. What is the relevance of a pre-trial order?
Q. What is the effect if the authority is invalid? The pre-trial order shall govern the subsequent order of the cases.
It is as if he did not attend the pre-trial. Montie: You can find the issues in this pre-trial order, and you cannot go outside
of these issues, otherwise the opposing party will object.
SEC 5. EFFECT OF FAILURE TO APPEAR
RULE 19 – INTERVENTION
EFFECT OF FAILURE TO APPEAR
The failure of the plaintiff to appear when so required pursuant to the INTERVENTION
next preceding section shall be cause for dismissal of the action. The A pleading by a person, not party to a case, filed in order to make him
dismissal shall be with prejudice, unless other-wise ordered by the court. a party to the case.
A similar failure on the part of the defendant shall be cause to allow the  The intervenor protects his interest
plaintiff to present his evidence ex parte and the court to render  He may side with the plaintiff, defendant or even contradict both
judgment on the basis thereof.  Motion to intervene is just ancillary to the main case
Effects of failure to appear: SEC 1. WHO MAY INTERVENE

A. Plaintiff – dismissal with prejudice WHO MAY INTERVENE
B. Defendant – court will order the plaintiff to present his evidence A person who has a legal interest in the matter in litigation, or in the
ex parte success of either of the parties, or an interest against both, or is so
Remedy of the defendant: File a motion for reconsideration and not a situated as to be adversely affected by a distribution or other disposition
motion to lift default. If court grants the motion for reconsideration, no of property in the custody of the court or of an officer thereof may, with
need to set another pre-trial. leave of court, be allowed to intervene in the action. The court shall
consider whether or not the intervention will unduly delay or prejudice
SEC 6. PRE-TRIAL BRIEF the adjudication of the rights of the original parties, and whether or not
PRE-TRIAL BRIEF the intervenors rights may be fully protected in a separate proceeding.
The parties shall file with the court and serve on the adverse party, in
Q. What are the grounds for intervention?
such manner as shall ensure their receipt thereof at least three (3) days
A. The intervenor has a legal interest on the matter under litigation
before the date of the pre-trial, their respective pre-trial briefs which
B. The intervenor has a legal interest in the success of either of the
shall contain, among others:
parties
C. The intervenor has a legal interest against both
(a) A statement of their willingness to enter into amicable settlement
D. The intervenor is so situated as to be adversely be affected by a
or alternative modes of dispute resolution, indicating the desired
distribution or other disposition of property in the custody of the
terms thereof;
court or of an offense thereof
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved; Example:
(d) The documents or exhibits to be presented stating the purpose A and B have a dispute over the ownership of a parcel of land. X comes
thereof; into the picture and claims he is the real owner, but he was not a party
(e) A manifestation of their having availed or their intention to avail to the case because the case was only between A and B. X may
themselves of discovery procedures or referral to commissioners; intervene in this case to protect his interest.
and
(f) The number and names of the witnesses, and the substance of Leave of court required
their respective testimonies. A motion to intervene is in the sound discretion of the court to either
deny or grant.
Montie: All that you need to say in the pre-trial, put it in writing, that’s TN: Must be along with pleadings that you want the court to admit
your pre-trial brief. (pleading in intervention)
When to submit pre-trial brief Factors to consider whether or not to allow intervention:
Three days before the pre-trial
A. Whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.
Effects of failure to file pre-trial brief
A. Plaintiff – dismissal with prejudice B. Whether or not the intervenor’s right may be fully be protected in
B. Defendant – same effect as failure to appear at the pre-trial. The a separate proceeding.
court will order the plaintiff to present his evidence ex parte. TN: If you can do it in separate proceedings, then do it there.
SEC 6. RECORD OF PRE-TRIAL SEC 2. TIME TO INTERVENE
RECORD OF PRE-TRIAL TIME TO INTERVENE

The proceedings in the pre-trial shall be recorded. Upon the termination The motion to intervene may be filed at any time before rendition of
thereof, the court shall issue an order which shall recite in detail the judgment by the trial court. A copy of the pleading-in-intervention shall
matters taken up in the conference, the action taken thereon, the be attached to the motion and served on the original parties.
amendments allowed to the pleadings, and the agreements or
admissions made by the parties as to any of the matters considered. Q. When can you file intervention?
Should the action proceed to trial, the order shall, explicitly define and Any time before the court enters judgment
Montie: But if you intervene when the case is already submitted for decision, the Q. Are there cases which shall be given preference?
court will most likely deny the motion and suggest that you file it in a separate Yes. Preference shall be given to habeas corpus cases, election cases,
proceeding. Anyway, the intervenor is not a party and hence, will not be bound by special civil actions and those so required by law.
the judgment. It’s too late to intervene at this point (Not sure if binding or only
Montie’s opinion)
SEC 2. ASSIGNMENT OF CASES
Q. How can you file?
Attach a copy of the pleading-in-intervention to the motion and serve to ASSIGNMENT OF CASES
original parties. The assignment of cases to the different branches of a court shall be
done exclusively by raffle. The assignment shall be done in open session
Q. What is the effect of dismissal of main action on the of which adequate notice shall be given so as to afford interested parties
intervention? the opportunity to be present.
Big Country Ranch Case Q. How are assignment of cases done?

The dismissal of the main action is the dismissal of intervention because Cases are raffled to know where it will be heard.
the latter is ancilliary to the main case.  The raffle is attended by the executive judge of the sala, with two
other judges.
Metropolitan Bank and Trust Company Case  The raffle open to the public
The dismissal of the main action is not dismissal of intervention if the  Notice shall be given to the parties
latter can stand alone/independent to the main case. The intervenor
must be allowed to prove his case. Q. When shall assignment of cases take place?
GR: Usually Tuesday afternoons.
Summary of Rules: XPNs: Cases which are urgent or needs immediate action:
If the complaint is dismissed, look at the Intervention. A. Writ of preliminary injunction
 If intervention is ancilliary to the main case, then it has no leg to B. TRO
stand on – Intervention is dismissed
 If the intervention can stand independently – Intervention subsists.
RULE 21 – SUBPOENA
Q. What is the remedy of the intervenor in case intervention is SUBPOENA
denied? A subpoena is a written order from the court requiring a person to
Special action for certiorari if there is grave abuse of discretion. appear in order to testify. There are also instances where you are not
TN: Mandamus will not lie because intervention is discretionary on the part of the only required to testify but also to bring some records to present in
judge. court.
SEC 3. PLEADINGS-IN-INTERVENTION SEC 1. SUBPOENA AND SUBPOENA DUCES TECUM

PLEADINGS-IN-INTERVENTION SUBPOENA AND SUBPOENA DUCES TECUM
The intervenor shall file a complaint-in-intervention if he asserts a claim Subpoena is a process directed to a person requiring him to attend and
against either or all of the original parties, or an answer-in-intervention to testify at the hearing or the trial of an action, or at any investigation
if he unites with the defending party in resisting a claim against the conducted by competent authority, or for the taking of his deposition.
latter.
It may also require him to bring with him any books, documents, or
Pleadings in intervention other things under his control, in which case it is called a
A. Complaint in intervention – if intervenor sides with the plaintiff subpoena duces tecum.
B. Answer in intervention – if intervenor sides with the defendant
C. Complaint in intervention – If intervenor does not side with either Q. What are the two kinds of subpoena?
(as when the intervenor makes the plaintiff and defendant as 1. Subpoena duces tecum – Bring documents and identify in court
defendants) 2. Subpoena ad testificandum – appeal in court and testify
SEC 4. ANSWER TO COMPLAINT-IN-INTERVENTION TN: Subpoena duces tecum ad testificandum – if both to bring documents and
testify in court.
ANSWER TO COMPLAINT-IN-INTERVENTION
The answer to the complaint-in-intervention shall be filed within fifteen SEC 2. BY WHOM ISSUED
(15) days from notice of the order admitting the same, unless a different
period is fixed by the court. BY WHOM ISSUED
The subpoena may be issued by —
Q. When shall the answer be filed? A. The court before whom the witness is required to attend
Within 15 days from notice of the order admitting the complaint. B. The court of the place where the deposition is to be taken
C. The officer or body authorized by law to do so in connection with
RULE 20 – CALENDAR OF CASES investigations conducted by said officer or body
D. Any Justice of the Supreme Court or of the Court of Appeals in any
SEC 1. CALENDAR OF CASES case or investigation pending within the Philippines.
CALENDAR OF CASES When application for a subpoena to a prisoner is made, the judge or
The clerk of court, under the direct supervision of the judge, shall keep officer shall examine and study carefully such application to determine
a calendar of cases for pre-trial, for trial, those whose trials were whether the same is made for a valid purpose.
adjourned or postponed, and those with motions to set for hearing.
Preference shall be given to habeas corpus cases, election cases, special No prisoner sentenced to death, reclusion perpetua or life imprisonment
civil actions, and those so required by law and who is confined in any penal institution shall be brought outside the
said penal institution for appearance or attendance in any court unless
Duty of the Clerk of Court authorized by the Supreme Court.
The Clerk of court shall keep a calendar of cases
Q. Who may issue a subpoena? SEC 5. SUBPOENA FOR DEPOSITIONS

1. The court before whom the witness is required to attend.
SUBPOENA FOR DEPOSITIONS
TN: Issued by the court where the case is pending and where the witness is Proof of service of a notice to take a deposition, as provided in sections
called. 15 and 25 of Rule 23, shall constitute sufficient authorization for the
issuance of subpoenas for the persons named in said notice by the clerk
2. The court of the place where the deposition is to be taken of the court of the place in which the deposition is to be taken. The clerk
Refers only to deposition taking.
shall not, however, issue a subpoena duces tecum to any such person
Ex: The case is in Cebu but the witness is residing in Tacloban and not willing without an order of the court.
to attend. You may get his testimony at Tacloban and the judge in Tacloban
will be the one to preside in the taking of testimony. The judge in Tacloban
is not really the judge in that case and his role is only to issue a subpoena
Subpoena for Deposition
to the witness to get the testimony. This relates to the second person enumerated by the rules who may
issue a subpoena.
3. The officer or body authorized by law to do so in connection with A. Notice must be made for all parties for the deposition
investigations conducted by said officers or body. B. Must be in writing and must be properly served
Refers to the officers who are in the ground who are allowed to make Montie: Before the judge issues the subpoena to the witness, there must be proof
investigation under their investigatory power. that the requesting party has notified all parties regarding the deposition-taking.
Examples: The opposing party is invited to attend the deposition for purposes of cross-
1. Fiscal/Prosecutor during preliminary investigation examination. The opposing party may choose not to attend.
2. NBI
SEC 6. SERVICE
4. Any justice of supreme court or the court of appeals in any case or
investigation pending in the Philippines SERVICE
Service of a subpoena shall be made in the same manner as personal or
TN: If subpoena is issued by the court and you did not obey, you can be substituted service of summons. The original shall be exhibited and a
cited for contempt of court.
copy thereof delivered to the person on whom it is served, tendering to
him the fees for one day's attendance and the kilometrage allowed by
SEC 3. FORM AND CONTENTS these Rules, except that, when a subpoena is issued by or on behalf of
the Republic of the Philippines or an officer or agency thereof, the tender
FORM AND CONTENTS need not be made.
A subpoena shall state the name of the court and the title of the action
or investigation, shall be directed to the person whose attendance is The service must be made so as to allow the witness a reasonable time
required, and in the case of a subpoena duces tecum, it shall also for preparation and travel to the place of attendance. If the subpoena
contain a reasonable description of the books, documents or things is duces tecum, the reasonable cost of producing the books, documents
demanded which must appear to the court prima facie relevant. or things demanded shall also be tendered.
Montie: Summons and Subpoena is similar, only that you are mandated to do
different things. A subpoena requires you to testify or bring documents. A
Q. How shall subpoena be served?
Summons requires you to answer the complaint. The format is the same. In the same manner as personal or substituted service of summons.
SEC 4. QUASHING A SUBPOENA SEC 7. PERSONAL APPEARANCE IN COURT
QUASHING A SUBPOENA PERSONAL APPEARANCE IN COURT

The court may quash a subpoena duces tecum upon motion promptly A person present in court before a judicial officer may be required to
made and, in any event, at or before the time specified therein if it is testify as if he were in attendance upon a subpoena issued by such court
unreasonable and oppressive, or the relevancy of the books, documents or officer.
or things does not appear, or if the person in whose behalf the subpoena
is issued fails to advance the reasonable cost of the production thereof. GR: One cannot be compelled to testify if he is not served with a written
subpoena.
The court may quash a subpoena ad testificandum on the ground that XPN: If said person is inside the courtroom during hearing of the case,
the witness is not bound thereby. In either case, the subpoena may be he may be compelled to testify without a subpoena.
quashed on the ground that the witness fees and kilometrage allowed
by these Rules were not tendered when the subpoena was served.
SEC 8. COMPELLING ATTENDANCE
Q. What are the grounds for a motion to quash a subpoena? COMPELLING ATTENDANCE
The grounds depend on the kind of subpoena. In case of failure of a witness to attend, the court or judge issuing the
Subpoena Duces Tecum subpoena, upon proof of the service thereof and of the failure of the
1. If subpoena is unreasonable or oppressive witness, may issue a warrant to the sheriff of the province, or his deputy,
2. The relevance of the books, things or documents does not appear. to arrest the witness and bring him before the court or officer where his
3. The person in whose behalf the subpoena is issued fails to attendance is required, and the cost of such warrant and seizure of such
advance the reasonable cost for the production thereof. witness shall be paid by the witness if the court issuing it shall determine
Example: Photocopying expenses that his failure to answer the subpoena was willful and without just
excuse.
Subpoena Ad Testificandum
1. That the witness is not bound thereby (Viatory right) SEC 9. CONTEMPT
Right of a witness to refuse the subpoena because he resides
more than 100km from the court; fear of riding a plane or ferry CONTEMPT
Failure by any person without adequate cause to obey a subpoena
served upon him shall be deemed a contempt of the court from which
the subpoena is issued. If the subpoena was not issued by a court, the
disobedience thereto shall be punished in accordance with the applicable 4 are counted. In total, only 3 days, of the 15 day period has
law or Rule. elapsed. X has 12 days left to file an answer as balance should the
motion be denied.
Q. What is the effect of failure to obey a subpoena?
 The judge denied the motion to dismiss and X receives the order
GR: He may be cited in contempt of court. He can be imprisoned until
of denial on January 10. Applying the 2nd Rule (B), exclude January
he testified.
10. The balance of the period starts to run on January 11. X has
XPN: Viatory right of a witness (The right to refuse to testify because he until January 22 to file his answer. (10+12=22)
lives more than 100 kilometres from the court)
 January 22 is a Saturday. Applying 3rd Rule, X can file until the next
XPN to XPN: If criminal case. working day.
People v. Montejo
MODES OF DISCOVERY
Viatory right applies only to civil cases. Not applicable to Criminal Cases
because of the Constitutional right of the accused to have a compulsory MODES OF DISCOVERY
process to secure the attendance of his witnesses and production of Modes of discovery can be used to terminate the case early through
pieces of evidence in criminal cases. amicable settlement. Here, the evidentiary facts may be revealed
through the modes.
SEC 10. EXCEPTIONS
Q. What are the purposes of the modes?
EXCEPTIONS To know the evidence of the other party to guide you what step to take.
The provisions of sections 8 and 9 of this Rule shall not apply to a The modes of discovery are intended to compel the parties to lay all
witness who resides more than one hundred (100) kilometres from his their cards on the table to avoid surprises. Also, this is for the parties to
residence to the place where he is to testify by the ordinary course of know whether to go through the case or graciously settle.
travel, or to a detention prisoner if no permission of the court in which
his case is pending was obtained. TN: The Rules of Court is never intended for the parties to win the case
through technicalities.
RULE 22 – COMPUTATON OF TIME
Q. What are the different modes of discovery?
SEC 1. HOW TO COMPUTE TIME A. Deposition Taking (Rule 23, 24)
B. Written Interrogatories to Parties (Rule 25)
HOW TO COMPUTE TIME C. Request for admission of adverse parties (Rule 26)
In computing any period of time prescribed or allowed by these Rules, D. Production or Inspection of Documents and things (Rule 27)
or by order of the court, or by any applicable statute, the day of the act E. Physical and Mental Examination of Persons (Rule 28)
or event from which the designated period of time begins to run is to be
excluded and the date of performance included. If the last day of the
RULE 23 – DEPOSITIONS PENDING ACTION
period, as thus computed, falls on a Saturday a Sunday, or a legal
holiday in the place where the court sits, the time shall not run until the DEPOSITION TAKING
next working day. Deposition is the advance taking of the testimony of the person who is
a party to the case, prospective witness or any person who may have
SEC 2. EFFECT OF INTERRUPTION knowledge about the subject matter of the case
Purpose: To know the evidence of the other party.
EFFECT OF INTERRUPTION
Should an act be done which effectively interrupts the running of the
Q. Are you compelled to use the testimony taken during the
period, the allowable period after such interruption shall start to run on
deposition?
the day after notice of the cessation of the cause thereof. The day of
No. You are not compelled to use the testimony, taken through
the act that caused the interruption shall be excluded in the computation
deposition, of that witness or prospective witness during the trial of the
of the period.
case
Rules on how to compute time: Q. How is the subject of the deposition called?
1. Exclude the first day include the last day. Deponent.
2. Effect of interruption: (i.e. motion to dismiss; bill of particulars) Q. What are the two kinds of deposition?
A. The day of the act that caused the interruption shall be
1. Deposition pending action (De Benne Esse)
excluded in the computation of the period. 2. Deposition Pending appeal or before action (In Perpetuam Rie
B. The allowable period after such interruption shall start to run
Memoriam)
on the day after notice of the cessation of the cause.
3. If the last day of the period, falls on a Saturday, Sunday, or a legal SEC 1. WHEN MAY BE TAKEN
holiday in the place where the court sits, the time shall not run until DEPOSITIONS PENDING ACTION, WHEN MAY BE TAKEN
the next working day. By leave of court after jurisdiction has been obtained over any defendant
or over property which is the subject of the action, or without such leave
Montie’s Application of Rules on Computation on Period to File an after an answer has been served, the testimony of any person, whether
Answer (Figures changed for easier understanding): a party or not, may be taken, at the instance of any party, by deposition
upon oral examination or written interrogatories.
 X received the copy of the Complaint of Y in January 1. X has 15
days to answer. Applying the 1st Rule, exclude January 1. X has The attendance of witnesses may be compelled by the use of a
until January 16 to answer. (1+15=16) subpoena as provided in Rule 21. Depositions shall be taken only in
 But instead of filing an answer, X files a motion to dismiss the case accordance with these Rules. The deposition of a person confined in
on January 5. Applying 2nd Rule (A), January 5 shall not be included
in the computation of the period. In effect, only January 2, 3, and
10 | U N I V E R S I T Y O F S A N C A R L O S
prison may be taken only by leave of court on such terms as the court
prescribes. (b) The deposition of a party or of any one who at the time of taking
the deposition was an officer, director, or managing agent of a
Q. When may a deposition pending action be taken? public or private corporation, partnership, or association which is
a party may be used by an adverse party for any purpose.
A. With leave of court – When the court has acquired jurisdiction over
the defendant but the defendant has no answer yet. (c) The deposition of a witness, whether or not a party, may be used
Example: Defendant was served with summons. Within the 15 day period
by any party for any purpose if the court finds:
given to defendant to file an answer, the plaintiff may take the deposition of
any person with leave of court, as long as there is yet no answer. 1. That the witness is dead.
B. Without leave of court – when there is already an answer. 2. That the witness resides at a distance more than one
In this case, there is only a need to send notice to take deposition to the hundred (100) kilometers from the place of trial or hearing,
other party and the court. Only notice is needed because it is a matter of or is out of the Philippines, unless it appears that his absence
right. was procured by the party offering the deposition.
Daits Note: Don’t be confused. Unlike the rules on amendment, 3. That the witness is unable to attend or testify because of
deposition taking as a matter of right can be only exercised after the age, sickness, infirmity, or imprisonment.
filing of the answer by the defendant.
4. That the party offering the deposition has been unable to
Q. What are the modes of deposition? procure the attendance of the witness by subpoena.
1. Oral examination
You ask questions to the deponent directly – orally. This is the 5. Upon application and notice, that such exceptional
same as direct and cross examination. Similar to the trial of the circumstances exist as to make it desirable, in the interest of
case before the court, except that it is not done in the court justice and with due regard to the importance of presenting
where the case is pending, but in another place before a the testimony of witnesses orally in open court, to allow the
deposition officer. deposition to be used.
2. Written interrogatories (d) If only part of a deposition is offered in evidence by a party, the
The requesting party who wants to take the depositions will adverse party may require him to introduce all of it which is
write all his questions in a paper and send to the deposition relevant to the part introduced, and any party may introduce any
officer who will also send it to the lawyer of the other party who other parts.
will write all the answers.
Q. When can deposition be used?
SEC 2. SCOPE OF EXAMINATION  Even before the trial starts
 When you take the deposition of any person, you are not
SCOPE OF EXAMINATION compelled to use the person as a witness
Unless otherwise ordered by the court as provided by section 16 or 18  If favorable, then you should use him. If not, then don’t.
of this Rule, the deponent may be examined regarding any matter, not  May take deposition of the other party but you are not compelled
privileged, which is relevant to the subject of the pending action, to use the deposition during trial
whether relating to the claim or defense of any other party, including  One use of deposition is for early disposition of the case by
the existence, description, nature, custody, condition, and location of amicable settlement, such as when you already know the
any books, documents, or other tangible things and the identity and evidence against you, you may opt to settle instead.
location of persons having knowledge of relevant facts.
Q. What are the different uses of deposition?
Scope of Examination
Any question may be asked provided it is relevant and material, and not 1. To contradict or impeach the testimony of the deponent as a
privileged information. witness
Admission of facts, genuineness of a document, etc.
Examples.
1. Confession to the priest Example: At the start of the trial, I already know that you are going to use
2. Lawyer-client relationship this person as a witness and coach him what to say. If I take deposition of
that witness before you get to him and coach him, I will be able to use his
3. Doctor-patient relationship
own testimony against him when you use him during the trial and he states
4. Husband and wife conversations contradictory statements to the deposition I took.
SEC 3. EXAMINATION AND CROSS-EXAMINATION 2. Deposition of a party or an officer of the corporation may be used
EXAMINATION AND CROSS-EXAMINATION by the adverse party for any purpose
Examination and cross-examination of deponents may proceed as
permitted at the trial under sections 3 to 18 of Rule 132. (3a, R24) 3. Deposition of a witness, whether or not a party, may be used by
any party for any purpose if the court finds that the witness:
SEC 4. USE OF DEPOSITONS a) Is dead
b) Resides more than 100 kilometers from the court
USE OF DEPOSITIONS c) Witness cannot testify because of age, sickness, or infirmity
At the trial or upon the hearing of a motion or an interlocutory d) Witness did not appear despite subpoena issued
proceeding, any part or all of a deposition, so far as admissible under
the rules of evidence, may be used against any party who was present Examples: Client may want to go abroad, therefore lawyers should take
or represented at the taking of the deposition or who had due notice deposition of the witness before he is no longer available for the trial.
thereof, in accordance with any one of the following provisions: Trial is in Cebu and witness is in Davao so you take his deposition so he
may not go to Cebu anymore. But, if you have a witness who is sick and
(a) Any deposition may be used by any party for the purpose of dying, you cannot use his deposition as long as he is still alive since at
contradicting or impeaching the testimony of deponent as a that moment, he is still present and available.
witness.
such person or officer as may be appointed by commission or under

SEC 5. EFFECT OF SUBSTITUTION OF PARTIES
letters rogatory; or (c) the person referred to in section 14 hereof.
EFFECT OF SUBSTITUTION OF PARTIES
Substitution of parties does not affect the right to use depositions Q. Who can be deposition officers if the deposition is take
previously taken; and, when an action has been dismissed and another outside the country?
action involving the same subject is afterward brought between the 1. On notice before a secretary of Embassy or Legation, Consul
same parties or their representatives or successors in interest, all general, Consul, Vice-consul, or consular agent of the RP.
depositions lawfully taken and duly filed in the former action may be
TN: Communicate first with the Department of Foreign Affairs, and the latter
used in the latter as if originally taken therefor.
will designate which of the above will act as deposition officer .
SEC 6. OBJECTIONS TO ADMISSIBILITY 2. Before such person or officer as may be appointed by commission
or under letters rogatory.
OBJECTIONS TO ADMISSIBILITY
Subject to the provisions of Section 29 of this Rule, objection may be 3. Any authorized person to administer oath
made at the trial or hearing, to receiving in evidence any deposition or
part thereof for any reason which would require the exclusion of the Q. How is deposition-taking outside of the country done?
evidence if the witness were then present and testifying. 1. By oral examination, or
2. By written interrogatories
Q. Can the deposition officer rule on any objection? Montie: But most probably through written interrogatories, because oral
No. The deposition officer cannot rule on objections because he is not a examination is expensive since the parties will have to send their lawyers
judge. He can only note down the objections and present to the judge abroad.
during trial.
SEC 12. COMMISSION OR LETTERS ROGATORY
Example:
A lawyer may be requested to be the deposition officer. If there are objections COMMISSION OR LETTERS ROGATORY
from the other party during the deposition taking, he will only note down the A commission or letters rogatory shall be issued only when necessary or
objections and sent them back to the judge. This rule is also true even if the convenient, on application and notice, and on such terms, and with such
deposition officer is a judge himself because he is not the judge assigned to the
direction as are just and appropriate. Officers may be designated in
case in the first place.
notices or commissions either by name or descriptive title and letters
rogatory may be addressed to the appropriate judicial authority in the
SEC 7. EFFECT OF TAKING DEPOSITIONS
foreign country.
EFFECT OF TAKING DEPOSITIONS
A party shall not be deemed to make a person his own witness for any Q. Suppose we don’t have Embassy or Legation, Consul general,
purpose by taking his deposition. Consul, Vice-consul, or consular agent of the RP in that
country?
SEC 8. EFFECT OF USING DEPOSITIONS Request a lawyer or any person authorized to administer oath in that
country to be the deposition officer by commission or letters rogatory.
EFFECT OF USING DEPOSITIONS
The introduction in evidence of the deposition or any part thereof for How? File a leave of court where the case is pending, requesting that
any purpose other than that of contradicting or impeaching the the latter issue a Letter Commission to that Deposition Officer outside
deponent makes the deponent the witness of the party introducing the the country.
deposition, but this shall not apply to the use by an adverse party of a Montie: The disadvantage if the deposition officer is a person by commission is
deposition as described in paragraph (b) of section 4 of this Rule. that they do not have coercive or contempt powers. Suppose a witness is residing
in Los Angeles, California. The Philippine consul acting as Deposition Officer invited
SEC 9. REBUTTING DEPOSITION the witness or person to his office to take the latter’s deposition and the witness
refused. The consul cannot compel the witness because the same has no contempt
REBUTTING DEPOSITION power. The remedy for this is letter rogatory.
At the trial or hearing any party may rebut any relevant evidence
contained in a deposition whether introduced by him or by any other Daits Note: Montie stated that persons appointed by letter commission have no
contempt powers, but also continued to say that even consuls do not have
party. (9, R24) contempt powers. So perhaps the disadvantage applies to both consuls and
persons appointed through letters commission (This is just an opinion to answer
SEC 10 &11. BEFORE WHOM MAY DEPOSITIONS BE TAKEN future questions about the reviewer. Please verify)
PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN Letter Rogatory

WITHIN THE PHILIPPINES Court to court requests by way of letter. Requesting the foreign court to
Within the Philippines, depositions may be taken before any judge, assist in the deposition based on the principle of reciprocity (if a similar
notary public, or the person referred to in section 14 hereof. situation will be requested here, our court will do the same)
Montie: This is better because the foreign court has a coercive power and can
Q. Who can be deposition officers if the deposition is taken in issue a subpoena to the defendant and arrest him if he will not come.
the Philippines?
a) Judge where deponent resides However, this is done as last recourse. Courts here must first use Letter
b) Notary public where deponent resides Commission. There must be poof that the Deposition Officer by
c) Any authorized person to administer oath where deponent commission attempted and failed to take the deposition because the
resides witness refused.
PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN IN

FOREIGN COUNTRIES
In a foreign state or country, depositions may be taken (a) on notice
before a secretary of embassy or legation, consul general, consul, vice-
consul, or consular agent of the Republic of the Philippines, (b) before
DISQUALIFICATION BY INTEREST
to make shall be entered upon the deposition by the officer with a  During the presentation of evidence, you can just say that you will
statement of the reasons given by the witness for making them. present the deposition paper (brown envelope will be opened as if
you have already presented your witness
 The objection of the other party will just say what number he is
The deposition shall then be signed by the witness, unless the parties objecting as recorded in the deposition paper and ask for the ruling
by stipulation waive the signing or the witness is ill or cannot be found of the judge of the said objection
or refuses to sign. If the deposition is not signed by the witness, the
officer shall sign it and state on the record the fact of the waiver or of 4. Effect of Requesting Party’s Failure to attend and Serve
the illness or absence of the witness or the fact of the refusal to sign Subpoena (sec. 23 and 24)
together with the reason be given therefor, if any, and the deposition
may then be used as fully as though signed, unless on a motion to DEPOSITION UPON WRITTEN INTERROGATORIES
suppress under section 29 (f) of this Rule, the court holds that the
reasons given for the refusal to sign require rejection of the deposition SEC 25. RECORD OF EXAMINATION, OATH, OBJECTIONS
in whole or in part.
DEPOSITION UPON WRITTEN INTERROGATORIES; SERVICE
SEC 20. CERTIFICATION, AND FILING BY OFFICER OF NOTICE AND OF INTERROGATORIES
A party desiring to take the deposition of any person upon written
CERTIFICATION, AND FILING BY OFFICER interrogatories shall serve them upon every other party with a notice
The officer shall certify on the deposition that the witness was duly stating the name and address of the person who is to answer them and
sworn to by him and that the deposition is a true record of the testimony the name or descriptive title and address of the officer before whom the
given by the witness. He shall then securely seal the deposition in an deposition is to be taken. Within ten (10) days thereafter, a party so
envelope indorsed with the title of the action and marked "Deposition of served may serve cross-interrogatories upon the party proposing to take
(here insert the name of witness)" and shall promptly file it with the the deposition. Within five (5) days thereafter, the latter may serve re-
court in which the action is pending or send it by registered mail to the direct interrogatories upon a party who has served cross-interrogatories.
clerk thereof for filing. Within three (3) days after being served with re-direct interrogatories, a
party may serve recross-interrogatories upon the party proposing to
take the deposition.
SEC 21. NOTICE OF FILING
NOTICE OF FILING SEC 26. OFFICERS TO TAKE RESPONSES & PREP RECORD
The officer taking the deposition shall give prompt notice of its filing to
all the parties. OFFICERS TO TAKE RESPONSES AND PREPARE RECORD
A copy of the notice and copies of all interrogatories served shall be
SEC 22. FURNISHING COPIES delivered by the party taking the deposition to the officer designated in
the notice, who shall proceed promptly, in the manner provided by
FURNISHING COPIES sections 17, 19 and 20 of this Rule, to take the testimony of the witness
Upon payment of reasonable charges therefor, the officer shall furnish in response to the interrogatories and to prepare, certify, and file or mail
a copy of the deposition to any party or to the deponent. the deposition, attaching thereto the copy of the notice and the
interrogatories received by him.
SEC 23. FAILURE TO ATTEND OF PARTY GIVING NOTICE
SEC 27. NOTICE OF FILING AND FURNISHING COPIES
FAILURE TO ATTEND OF PARTY GIVING NOTICE
If the party giving the notice of the taking of a deposition fails to attend NOTICE OF FILING AND FURNISHING COPIES
and proceed therewith and another attends in person or by counsel When a deposition upon interrogatories is filed, the officer taking it shall
pursuant to the notice, the court may order the party giving the notice promptly give notice thereof to all the parties, and may furnish copies
to pay such other party the amount of the reasonable expenses incurred to them or to the deponent upon payment of reasonable charges
by him and his counsel in so attending, including reasonable attorney's therefor.
fees.
Summary on Deposition upon written interrogatories
(As mentioned by Monteclar)
SEC 24. FAILURE OF PARTY TO SERVE SUBPOENA
1. Written interrogatories shall be served upon every party with
FAILURE OF PARTY GIVING NOTICE TO SERVE SUBPOENA notice
If the party giving the notice of the taking of a deposition of a witness 2. The notice shall state the name and address of the person to
fails to serve a subpoena upon him and the witness because of such answer it
failure does not attend, and if another party attends in person or by 3. The name, title and address of the position officer
counsel because he expects the deposition of that witness to be taken, 4. Within 10 days the person asked ma serve cross-interrogatories
the court may order the party giving the notice to pay to such other 5. Deposition officer shall give notice of its filing in court (Sec.27)
party the amount of the reasonable expenses incurred by him and his
counsel in so attending, including reasonable attorney's fees.
How deposition upon written interrogatories taken:
Summary on Deposition upon oral examination  The parties and counsel will not anymore go to the place of the witness
1. Notice sent first to the other party and to the court (Sec. 15)  Only the deposition officer, the stenographer and the witness or deponent
will be present
2. Order of Protection of Parties and Opponent (Sec. 16 to 18)  The questions of the requesting party are already written, and sent to the
 If the deposition amounts to harassment deposition officer and to all concerned parties
 The opposing party will also send their cross-Interrogatories to the
3. How deposition upon oral examination taken (Sec.17 to 22) deposition officer and all concerned parties within 10 days from receipt of
 Deposition must have a transcriber to write everything right away interrogatories
 The Transcript of Stenographic Notes will be shown to the parties if  In every case, there should be a written notice served to other parties
there are no objects  The deposition officer will ask the questions, deponent answers
 Then the parties will sign the transcript and it will be placed in a  The deposition officer will send the questions and answers to court
brown envelope to be mailed to the court  Deposition officer shall give notice of its filing in court (sec. 27)
SEC 28. ORDER FOR PROTECTION DEPOSITION PENDING APPEAL

You have lost the case in the lower court and you appealed. This is good
ORDER FOR THE PROECTION OF PARTIES AND DEPONENTS only when there are pieces of evidence newly discovered which is not
After the service of the interrogatories and prior to the taking of the taken into account by the lower court.
testimony of the deponent, the court in which the action is pending, on
motion promptly made by a party or a deponent, and for good cause Example:
shown, may make any order specified in sections 15, 16 and 18 of this Pending appeal you discovered evidence that could strip up your case in
Rule which is appropriate and just or an order that the deposition shall your favor but the evidence involves the testimony of a dying witness.
not be taken before the officer designated in the notice or that it shall If the CA grants your appeal, you already preserved your evidence.
not be taken except upon oral examination. (28a, R24)
DEPOSITIONS BEFORE ACTION
SEC 29. EFFECT OF ERRORS AND IRREGULARITIES
DEPOSITION SEC 1. DEPOSITIONS BEFORE ACTION, PETITION
EFFECT OF ERRORS AND IRREGULARITIES IN DEPOSITIONS
DEPOSITIONS BEFORE ACTION, PETITION
As to notice A person who desires to perpetuate his own testimony or that of another
All errors and irregularities in the notice for taking a deposition are person regarding any matter that may be cognizable in any court of the
waived unless written objection is promptly served upon the party giving Philippines may file a verified petition in the court of the place of the
the notice. residence of any expected adverse party.
As to disqualification of officer Q. If leave of court required? If yes, where do you file it?
Objection to taking a deposition because of disqualification of the officer Yes. Depositions before action must be done with leave of court. File
before whom it is to be taken is waived unless made before the taking the verified petition in the court where the expected adverse party
of the deposition begins or as soon thereafter as the disqualification resides.
becomes known or could be discovered with reasonable diligence. TN: The case thereafter need not be filed in the court where the expected adverse
party resides, only the leave of court is required to be filed there.
As to competency or relevancy of evidence
Objections to the competency of witness or the competency, relevancy, SEC 2. CONTENTS OF PETITION
or materiality of testimony are not waived by failure to make them
before or during the taking of the deposition, unless the ground, of the CONTENTS OF PETITION
objection is one which might have been obviated or removed if The petition shall be entitled in the name of the petitioner and shall
presented at that time. show:
1. That the petitioner expects to be a party to an action in a court of
As to oral examination and other particulars the Philippines but is presently unable to bring it or caused it to be
Errors and irregularities occurring at the oral examination in the manner brought
of taking the deposition in the form of the questions or answers, in the 2. The subject matter of the expected action and his interest therein
oath or affirmation, or in the conduct of the parties and errors of any 3. Facts which he desires to be established by the proposed testimony
kind which might be obviated, removed, or cured if promptly and his reasons for desiring to perpetuate it
prosecuted, are waived unless reasonable objection thereto is made at 4. The names or a description of the persons he expects will be
the taking of the deposition. adverse parties and their addresses so far as known
5. The names and addresses of the persons to be examined and the
As to form of written interrogatories substance of the testimony which he expects to be examined and
Objections to the form of written interrogatories submitted under the substance of the testimony which he expects to elicit from
sections 25 and 26 of this Rule are waived unless served in writing upon each, and shall ask for an order authorizing the petitioner to take
the party propounding them within the time allowed for serving the depositions of the persons to be examined named in the
succeeding cross or other interrogatories and within three (3) days after petition for the purpose of perpetuating their testimony.
service of the last interrogatories authorized.
SEC 3. NOTICE AND SERVICE
As to manner of preparation
Errors and irregularities in the manner in which the testimony is NOTICE AND SERVICE
transcribed or the deposition is prepared, signed, certified, sealed, The petitioner shall serve a notice upon each person named in the
indorsed, transmitted, filed, or otherwise dealt with by the officer under petition as an expected adverse party, together with a copy of the
sections 17, 19, 20 and 26 of this Rule are waived unless a motion to petition, stating that the petitioner will apply to the court, at a time and
suppress the deposition or some part thereof is made with reasonable place named therein, for the order described in the petition.
promptness after such defect is, or with due diligence might have been, At least twenty (20) days before the date of the hearing, the court shall
ascertained. cause notice thereof to be served on the parties and prospective
deponents in the manner provided for service of summons.
RULE 24-DEPOSITIONS BEFORE ACTION/PENDING APPEAL
Requirement of notice and service
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL The petitioner shall serve a notice upon each person named in the
petition as an expected adverse party, together with a copy of the
DEPOSITION BEFORE ACTION petition. The court will decide whether the deposition shall be by oral
Done before the case; There is no case filed yet. examination or by written interrogatories
Instances where deposition before action may be applicable SEC 5. ORDER AND EXAMINATION
1. You wanted to file a case but you lack evidence.
2. One of your witness is about to die, so you will take his deposition. ORDER AND EXAMINATION
3. You think there might be a case that will most likely be filed against If the court is satisfied that the perpetuation of the testimony may
you prevent a failure or delay of justice, it shall make an order designating
or describing the persons whose deposition may be taken and specifying
the subject matter of the examination and whether the depositions shall
be taken upon oral examination or written interrogatories. The B. Without leave of court – when there is already an answer filed by
depositions may be taken in accordance with Rule 23 before the hearing. the defendant
SEC 5. REFERENCE TO COURT SEC 2. ANSWER TO INTERROGATORIES
REFERENCE TO COURT ANSWER TO INTERROGATORIES

For the purpose of applying Rule 23 to depositions for perpetuating The interrogatories shall be answered fully in writing and shall be signed
testimony, each reference therein to the court in which the action is and sworn to by the person making them. The party upon whom the
pending shall be deemed to refer to the court in which the petition for interrogatories have been served shall file and serve a copy of the
such deposition was filed. (5a, R134) answers on the party submitting the interrogatories within fifteen (15)
days after service thereof unless the court on motion and for good cause
shown, extends or shortens the time.
SEC 6. USE OF DEPOSITION
USE OF DEPOSITION Q. How should answers to interrogatories be made?
If a deposition to perpetuate testimony is taken under this Rule, or if, A. Answer fully in writing
although not so taken, it would be admissible in evidence, it may be B. Signed and sworn by the person making them
used in any action involving the same subject matter subsequently C. File and serve a copy of the answers on the requesting party
brought in accordance with the provisions of sections 4 and 5 of Rule within 15 days from service
23.
Q. When should interrogatories be answered?
Within 15 days from service thereof, unless the courts on motion and
DEPOSITIONS PENDING APPEAL
for good cause shown, extends or shortens the period.
SEC 7. DEPOSITIONS PENDING APPEAL
SEC 3. OBJECTIONS TO INTERROGATORIES
DEPOSITIONS PENDING APPEAL
If an appeal has been taken from a judgment of a court, including the OBJECTIONS TO INTERROGATORIES
Court of Appeals in proper cases, or before the taking of an appeal if Objections to any interrogatories may be presented to the court within
the time therefor has not expired, the court in which the judgment was ten (10) days after service thereof, with notice as in case of a motion;
rendered may allow the taking of depositions of witnesses to perpetuate and answers shall be deferred until the objections are resolved, which
their testimony for in the event of further proceedings in the said court. shall be at as early a time as is practicable.
In such case the party who desires to perpetuate the testimony may Q. What should be the ground for objection?
make a motion in the said court for leave to take the depositions, upon That the questions are immaterial and irrelevant.
the same notice and service thereof as if the action was pending therein.
Q. When should objections be raised?
The motion shall state (a) the names and addresses of the persons to Within 10 days after service thereof.
be examined and the substance of the testimony which he expects to
elicit from each, and (b) the reason for perpetuating their testimony. SEC 4. NUMBER OF INTERROGATORIES
If the court finds that the perpetuation of the testimony is proper to NUMBER OF INTERROGATORIES
avoid a failure or delay of justice, it may make an order allowing the No party may, without leave of court, serve more than one set of
deposition to be taken, and thereupon the depositions may be taken interrogatories to be answered by the same party.
and used in the same manner and under the same conditions as are
prescribed in these Rules for depositions taken in pending actions. Q. How may sets of interrogatories may be filed?
Only one set. For the succeeding interrogatories, leave of court is
Q. When is deposition pending appeal taken? required.
 During the pendency of an appeal.
 Even before appeal is filed, but, the period to appeal has not yet SEC 5. SCOPE AND USE OF INTERROGATORIES
expired.
SCOPE AND USE OF INTERROGATORIES
Interrogatories may relate to any matters that can be inquired into under
RULE 25 – INTERROGATORIES TO PARTIES section 2 of Rule 23, and the answers may be used for the same
purposes provided in section 4 of the same Rule.
SEC 1. INTERROGATORIES TO PARTIES, SERVICE THEREOF
Montie: The same scope and use as in Rule 23. (See page 11 of this reviewer)
INTERROGATORIES TO PARTIES; SERVICE THEREOF
Under the same conditions specified in section 1 of Rule 23, any party
SEC 6. EFFECT OF FAILLURE TO SERVE WRITTEN INTER
desiring to elicit material and relevant facts from any adverse parties
shall file and serve upon the latter written interrogatories to be EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES.
answered by the party served or, if the party served is a public or private Unless thereafter allowed by the court for good cause shown and to
corporation or a partnership or association, by any officer thereof prevent a failure of justice, a party not served with written
competent to testify in its behalf. interrogatories may not be compelled by the adverse party to give
testimony in open court, or to give a deposition pending appeal.
Interrogatories to Parties
This is just like a written interrogatory but only addressed to a party in Q. What is the effect if a party is not served with written
the case. This cannot be imposed upon any other person, unlike Rule interrogatories?
23 where it can be used to take depositions of any other person. He may not be compelled by the adverse party to give the testimony in
open court, or to give a deposition pending appeal.
Q. How are interrogatories to parties done?
Montie: This is intended by the rules to compel the lawyer to use the modes of
A. With leave of court – when the court has acquired jurisdiction of discovery. Thus, the rule as it stands now is –you cannot compel the adverse party
the defendant but the defendant has not filed his answer to take the witness stand if you did not avail of the deposition under Rule 25.
RULE 26 – ADMISSION BY ADVERSE PARTY SEC 23. EFFECT OF ADMISSION

EFFECT OF ADMISSION
SEC 1. REQUEST FOR ADMISSION Any admission made by a party pursuant to such request is for the
purpose of the pending action only and shall not constitute an admission
REQUEST FOR ADMISSION
by him for any other purpose nor may the same be used against him in
At any time after issues have been joined, a party may file and serve
any other proceeding.
upon any other party may file and serve upon any other party a written
request for the admission by the latter of the genuineness of any TN: The admission is only good for the case. The admission cannot be
material and relevant document described in and exhibited with the used in any other proceeding.
request or of the truth of any material and relevant matter of fact set
forth in the request. Copies of the documents shall be delivered with the SEC 4. WITHDRAWAL
request unless copy have already been furnished.
WITHDRAWAL
Q. When may a party request for admission? The court may allow the party making an admission under the Rule,
At any time after the issues have been joined (when there is already a whether express or implied, to withdraw or amend it upon such terms
reply from the defendant) as may be just.
Q. What is being admitted? SEC 5. EFFECT OF FAILURE TO FILE AND SERVE REQUEST
The genuineness of any material and relevant document
EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR
Leave of court is not necessary ADMISSION
This is because there is already an answer when you avail of this mode Unless otherwise allowed by the court for good cause shown and to
of discovery. prevent a failure of justice a party who fails to file and serve a request
for admission on the adverse party of material and relevant facts at issue
SEC 2. IMPLIED ADMISSION which are, or ought to be, within the personal knowledge of the latter,
shall not be permitted to present evidence on such facts.
IMPLIED ADMISSION
Each of the matters of which an admission is requested shall be deemed Q. What is the effect if you failed to file and serve a request
admitted unless, within a period designated in the request, which shall for admission?
not be less than fifteen (15) days after service thereof, or within such GR: You will not be permitted to present evidence on such facts.
further time as the court may allow on motion, the party to whom the
XPNs:
request is directed files and serves upon the party requesting the
1. If allowed by the court for good cause shown
admission a sworn statement either denying specifically the matters of
2. If allowed by the court to prevent a failure of justice
which an admission is requested or setting forth in detail the reasons
why he cannot truthfully either admit or deny those matters.
Q. To whom should the request for admission be made?
Objections to any request for admission shall be submitted to the court Reboneria v. Court of Appeals
by the party requested within the period for and prior to the filing of his A request for admission must be addressed to the party and not to his
sworn statement as contemplated in the preceding paragraph and his lawyer. So, if the request was sent to the lawyer of the adverse party
compliance therewith shall be deferred until such objections are and the latter fails to answer, it is not deemed as an implied admission
resolved, which resolution shall be made as early as practicable. because the request was not valid in the first place.
PSCFC Financing Corp v. CA

Q. When is the genuineness of the document deemed admitted? However, if the request for admission was properly sent to the party and
GR: If the party requested fails to answer the request within 15 days the latter requested his lawyer to answer it, the answer is valid. Under
after service thereof. the Rules, a client can always act through his lawyer and that he is
bound by the actuation of the latter.
Montie: So if you are asked if it is genuine and you did not answer, then you are
deemed to have impliedly admitted the genuineness of the document. The party
who failed to answer cannot anymore assail the genuineness of the document RULE 27 – PRODUCTION OR INSPECTION OF DOCUMENTS
XPN: SEC 1. MOTION FOR PRODUCTION OR INSPECTION

When there is already a denial in the pleading. (Then, answering the
admission request would be redundant) MOTION FOR PRODUCTION OR INSPECTION, ORDER
Upon motion of any party showing good cause therefor, the court in
Po v. CA which an action is pending may:
Plaintiff filed a case for collection of sum of money with attachment of (a) Order any party to produce and permit the inspection and copying
promissory note signed by the defendant. Defendant, in his answer, said or photographing, by or on behalf of the moving party, of any
that the promissory note is not genuine. Before the start of the trial, the designated documents, papers, books, accounts, letters,
plaintiff sent a letter to the defendant requesting the admission of photographs, objects, not privileged, which constitute or contain
genuineness, the defendant did not anymore answer the letter. evidence material to any matter involved in the action and which
are in his possession, custody or control, or
Under Rule 26, the attached promissory note should have been admitted
as genuine. However, when a matter is already effectively denied in the (b) Order any party to permit entry upon designated land or other
pleading, there is no need any more to ask it again under Rule 26. If property in his possession or control for the purpose of inspecting,
requested and not denied in this case, there is no implied admission. measuring, surveying, or photographing the property or any
designated relevant object or operation thereon. The order shall
specify the time, place and manner of making the inspection and
taking copies and photographs, and may prescribe such terms
and conditions as are just.
Q. How is it done? Q. May a doctor refuse to make a report of the examination?

A. Documents – Before the trial you can ask for the production of Yes, by reason of doctor-patient relationship since it is privileged
the documents in clear copy so that you can have it photocopied communication. In which case, the court may exclude the doctor’s
testimony if offered at the trial.
B. Things – Can refer to any type property, real or personal. Real
property is examined by ocular inspection Remedy: The court will require the patient to order his doctor to give
the report.
Requisites for a valid inspection of documents or things
(Real or Personal) SEC 4. WAIVER OF PRIVILEGE
1. A motion for leave of court must be filed
2. The motion must show good cause for its grant WAIVER OF PRIVILEGE
3. Notice of motion must be furnished to all parties By requesting and obtaining a report of the examination so ordered or
4. The motion must sufficiently describe the documents or things to by taking the deposition of the examiner, the party examined waives
be produced or examined any privilege he may have in that action or any other involving the same
5. The document or things to be examined must contain evidence controversy, regarding the testimony of every other person who has
material to the pending action examined or may thereafter examine him in respect of the same mental
6. The documents or thing to be examined must not be privileged or physical examination.
7. Documents or things to be examined must be in the possession of
the adverse party may at least be under his control Application
The plaintiff asks the court to examine the mental condition of the
defendant. The court grants and the defendant is examined by the
RULE 28–PHYSICAL & MENTAL EXAMINATION OF PERSONS physician availed by the plaintiff. The physician sends the report to the
PHYSICAL AND MENTAL EXAMINATION OF PERSONS plaintiff (because they were the ones who hired the physician).
This rule is applicable only to the living. A cadaver is considered a thing
and thus Rule 27 applies Defendant can request and obtain the report which the plaintiff has in
his possession. Consequently, if the defendant had any previous
SEC 1. WHEN EXAMINATION MAY BE ORDERD examinations by doctors about his mental condition, the plaintiff can
also request and obtain these documents. The defendant has deemed
WHEN EXAMINATION MAY BE ORDERED to have waived the privilege of confidentiality he had with his previous
In an action in which the mental or physical condition of a party is in physicians.
controversy, the court in which the action is pending may in its discretion
order him to submit to a physical or mental examination by a physician. RULE 29 – REFUSAL TO COMPLY W/ MODES OF DISCOVERY
Q. When may an examination be ordered? SEC 1. REFUSAL TO ANSWER

When the mental or physical condition of a party is in controversy. This
is however discretionary upon the court. REFUSAL TO ANSWER
If a party or other deponent refuses to answer any question upon oral
SEC 2. ORDER FOR EXAMINATION examination, the examination may be completed on other matters or
adjourned as the proponent of the question may prefer. The proponent
ORDER FOR EXAMINATION may thereafter apply to the proper court of the place where the
The order for examination may be made only on motion for good cause deposition is being taken, for an order to compel an answer. The same
shown and upon notice to the party to be examined and to all other procedure may be availed of when a party or a witness refuses to answer
parties, and shall specify the time, place, manner, conditions and scope any interrogatory submitted under Rules 23 or 25.
of the examination and the person or persons by whom it is to be made.
If the application is granted, the court shall require the refusing party or
Q. When may an examination be ordered? deponent to answer the question or interrogatory and if it also finds that
 Only upon motion for good cause show and the refusal to answer was without substantial justification, it may require
 Upon notice to the party to be examined and to all other parties the refusing party or deponent or the counsel advising the refusal, or
 Notice shall specify the time, place, manner, conditions and scope both of them, to pay the proponent the amount of the reasonable
of the examination and the person or persons by who it is to be expenses incurred in obtaining the order, including attorney's fees.
made
If the application is denied and the court finds that it was filed without
SEC 3. REPORT OF FINDINGS substantial justification, the court may require the proponent or the
counsel advising the filing of the application, or both of them, to pay to
REPORT OF FINDINGS the refusing party or deponent the amount of the reasonable expenses
If requested by the party examined, the party causing the examination incurred in opposing the application, including attorney's fees.
to be made shall deliver to him a copy of a detailed written report of the
examining physician setting out his findings and conclusions. After such Refusal to Answer
request and delivery, the party causing the examination to be made shall  Movant of deposition upon oral examination may proceed to ask
be entitled upon request to receive from the party examined a like report questions on other matters
of any examination, previously or thereafter made, of the same mental  Movant may ask from the court for an order to compel from the
or physical condition. deponent to answer
 If the court finds the refusal to answer unreasonable, it may order
If the party examined refuses to deliver such report, the court on motion deponent and counsel to pay reasonable expenses incurred by the
and notice may make an order requiring delivery on such terms as are proponent in obtaining the order
just, and if a physician fails or refuses to make such a report the court  If the court finds the motion unjustifiable, it may order the
may exclude his testimony if offered at the trial. proponent to pay reasonable expenses in refusing the motion
Montie: All of these are without prejudice for the refusing party or
witness to be cited in contempt of court.
SEC 2. CONTEMPT OF COURT SEC 5. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS
CONTEMPT OF COURT FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS

If a party or other witness refuses to be sworn or refuses to answer any If a party or an officer or managing agent of a party wilfully fails to
question after being directed to do so by the court of the place in which appear before the officer who is to take his deposition, after being
the deposition is being taken, the refusal may be considered a contempt served with a proper notice, or fails to serve answers to interrogatories
of that court. submitted under Rule 25 after proper service of such interrogatories, the
court on motion and notice, may strike out all or any part of any pleading
SEC 3. OTHER CONSEQUENCES of that party, or dismiss the action or proceeding or any part thereof, or
enter a judgment by default against that party, and in its discretion,
OTHER CONSEQUENCES order him to pay reasonable expenses incurred by the other, including
If any party or an officer or managing agent of a party refuses to obey attorney's fees.
an order made under section 1 of this Rule requiring him to answer
designated questions, or an order under Rule 27 to produce any SEC 6. EXPENSES AGAINST THE REPUBLIC OF THE PHILS
document or other thing for inspection, copying, or photographing or to
permit it to be done, or to permit entry upon land or other property or EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES
an order made under Rule 28 requiring him to submit to a physical or Expenses and attorney's fees are not to be imposed upon the Republic
mental examination, the court may make such orders in regard to the of the Philippines under this Rule.
refusal as are just, and among others the following:
(a) An order that the matters regarding which the questions were
asked, or the character or description of the thing or land, or the
contents of the paper, or the physical or mental condition of the
party, or any other designated facts shall be taken to be
established for the purposes of the action in accordance with the
claim of the party obtaining the order.
(b) An order refusing to allow the disobedient party to support or

oppose designated claims or defenses or prohibiting him from
introducing in evidence designated documents or things or items
of testimony, or from introducing evidence of physical or mental
condition.
(c) An order striking out pleadings or parts thereof, or staying further

proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a judgment by
default against the disobedient party, and
(d) In lieu of any of the foregoing orders or in addition thereto, an

order directing the arrest of any party or agent of a party for
disobeying any of such orders except an order to submit to a
physical or mental examination.
Other consequences:
This was the only thing discussed by sir involving the rest of the consequences.
1. If the refusing party is the plaintiff – The court may dismiss his
case
2. If the refusing party is the defendant – He may declared as in
default
3. Refusal to allow the inspection of a thing or document shall be
taken to be established for the purposes of the action in accordance
with the claim of the party obtaining the order (Rule 27)
4. If a party refuses to admit the genuineness of a document under
Rule 26, and it is proven later on that the document is genuine –
The refusing party may be ordered to pay the reasonable expenses
incurred in making such proof, including attorney’s fees.
SEC 4. EXPENSES ON REFUSAL TO ADMIT
EXPENSES ON REFUSAL TO ADMIT

If a party after being served with a request under Rule 26 to admit the
genuineness of any document or the truth of any matter of fact serves
a sworn denial thereof and if the party requesting the admissions
thereafter proves the genuineness of such document or the truth of any
such matter of fact, he may apply to the court for an order requiring the
other party to pay him the reasonable expenses incurred in making such
proof, including attorney's fees. Unless the court finds that there were
good reasons for the denial or that admissions sought were of no
substantial importance, such order shall be issued.

Motions Sec 4. Hearing of Motion: Pro Forma Not

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What are the requisites of a valid motion?

What are the requisites of a valid motion?

What are the two kinds of motions and their differences?

What are the two kinds of motions and their differences?

CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y.

MOTIONS SEC 4. HEARING OF MOTION

RULE 15 – MOTIONS IN GENERAL HEARING OF MOTION

Q. When is motion day? RULE 16 – MOTION TO DISMISS

De Midgely v. Ferandos 3. The relief must be founded on the same facts

Two dismissal rule

There must be a written notice of pre-trial

B. The simplification of the issues. In case of authorized representative

Effects of failure to appear: SEC 1. WHO MAY INTERVENE

SEC 6. RECORD OF PRE-TRIAL SEC 2. TIME TO INTERVENE

RECORD OF PRE-TRIAL TIME TO INTERVENE

Big Country Ranch Case Q. How are assignment of cases done?

SEC 3. PLEADINGS-IN-INTERVENTION SEC 1. SUBPOENA AND SUBPOENA DUCES TECUM

Q. Who may issue a subpoena? SEC 5. SUBPOENA FOR DEPOSITIONS

SEC 4. QUASHING A SUBPOENA SEC 7. PERSONAL APPEARANCE IN COURT

QUASHING A SUBPOENA PERSONAL APPEARANCE IN COURT

such person or officer as may be appointed by commission or under

PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN Letter Rogatory

PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN IN

SEC 28. ORDER FOR PROTECTION DEPOSITION PENDING APPEAL

SEC 5. REFERENCE TO COURT SEC 2. ANSWER TO INTERROGATORIES

REFERENCE TO COURT ANSWER TO INTERROGATORIES

RULE 26 – ADMISSION BY ADVERSE PARTY SEC 23. EFFECT OF ADMISSION

PSCFC Financing Corp v. CA

XPN: SEC 1. MOTION FOR PRODUCTION OR INSPECTION

Q. How is it done? Q. May a doctor refuse to make a report of the examination?

Q. When may an examination be ordered? SEC 1. REFUSAL TO ANSWER

SEC 2. CONTEMPT OF COURT SEC 5. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS

CONTEMPT OF COURT FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS

(b) An order refusing to allow the disobedient party to support or

(c) An order striking out pleadings or parts thereof, or staying further

(d) In lieu of any of the foregoing orders or in addition thereto, an

SEC 4. EXPENSES ON REFUSAL TO ADMIT

EXPENSES ON REFUSAL TO ADMIT

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