CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y.
2015-2016
MOTIONS
RULE 15 – MOTIONS IN GENERAL
SEC 1. MOTION DEFINED
MOTION DEFINED
A motion is an application for relief other than by a pleading.
“Other than by a pleading” – A motion is not considered a pleading.
The pleadings are enumerated in Rule 6. (i.e. complaint, third party
complaint, and reply)
TN: A motion is not included in the enumeration which is why it is not considered
a pleading. However, in the strict sense of the word, a motion actually really is a
pleading since you are asking a relief from the court.
Q. What are the requisites of a valid motion?
Sections 2-6, Rule 15
A. It must be in writing
B. It must state the relief sought for and the grounds upon which it is
based
C. It must be set for hearing
D. There must be notice of hearing to the other party
E. There must be proof of service to the other party
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
pro forma motion – mere scrap of paper and does not produce any legal
effect. The filing of such will not stop the running of the prescriptive
period to appeal.
Example:
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
tolled.
SEC 2. MOTIONS MUST BE IN WRITING
MOTIONS MUST BE IN WRITING
All motions shall be in writing except those made in open court or in the
course of a hearing or trial.
GR: All motions must be in writing
XPN: Those made in open court or in the course of a hearing or trial
since it is recorded.
Examples of motions made is open court:
1. Motion for continuance during hearing
It’s already 12:00 noon. Can I move for the continuance of the case on
another date, gutom na.”
2. Motion for the exclusion of witnesses
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.
What he said may be taken down in writing.
SEC 3. CONTENTS
CONTENTS
A motion shall state the relief sought to be obtained and the grounds
upon which it is based, and if required by these Rules or necessary to
prove facts alleged therein, shall be accompanied by supporting
affidavits and other papers.
Q. What must the motion contain?
1. The specific reliefs sought for and sufficient grounds relied upon
by the relief.
2. In case of motion for new trial and motion to lift the order of
default – must also contain supporting affidavit of merit
3. The reason why the motion should be granted which must also
be discussed
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SEC 4. HEARING OF MOTION
HEARING OF MOTION
Except for motions which the court may act upon without prejudicing
the rights of the adverse party, every written motion shall be set for
hearing by the applicant.
Every written motion required to be heard and the notice of the hearing
thereof shall be served in such a manner as to ensure its receipt by the
other party at least 3 days before the date of hearing, unless the court
for good cause sets the hearing on shorter notice.
Hearing is required only for litigable motions
There is no need for hearing in motions that are non-litigable, such as
in cases of emergency or accident for they must be granted or denied
right away (ex-parte or urgent motions)
Two kinds of motions:
1. Litigable motions – need further hearing
2. Non-litigable – no need for further hearing; can be resolved in that
instant
The motion must be set not beyond 10 days from filing
Normally the motions are heard on Friday afternoons, but can actually
be set on any working day like when the motion is urgent.
Q. Who sets the date of the hearing?
The movant must set it for a particular date on a particular time.
However, although the movant sets the date of hearing, it is still
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
compliance sake.
Q. Should the other party be served of the motion?
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
hearing, unless the court for good cause sets the hearing on shorter
notice.
SEC 5. NOTICE OF HEARING
NOTICE OF HEARING
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
than ten (10) days after the filing of the motion.
Notice of hearing must be addressed to the other party
 You do not address it to the Clerk of Court.
 The other parties must be notified either by personal or registered
mail.
 The clerk of court will always check if you have placed a notice for
hearing addressed to the other party
SEC 6. PROOF OF SERVICE NECESSARY
PROOF OF SERVICE NECESSARY
No written motion set for hearing shall be acted upon by the court
without proof of service thereof.
Proof of Service
 Receipt is needed if by registered mail (registry receipt)
 Signature of the lawyer of the other party for personal service is
required
 Show to the court that you have notified the party of this motion
SEC 7. MOTION DAY
MOTION DAY
Except for motions requiring immediate action, all motions shall be
scheduled for hearing on Friday afternoons, or if Friday is a non-working
day, in the afternoon of the next working day.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
Q. When is motion day?
Friday afternoons. If Friday is a non-working day, in the afternoon of
the next working day (Monday possibly).
TN: But must not be more than 10 days after the service of motion. (Section 5)
SEC 8. OMNIBUS MOTION
OMNIBUS MOTION
Subject to the provisions of section 1 of Rule 9, a motion attacking a
pleading, order, judgment, or proceeding shall include all objections
then available, and all objections not so included shall be deemed
waived.
Omnibus Motion Rule
When you file a motion, put all the available grounds albeit inconsistent.
All the grounds available to you should be included in a motion to
dismiss.
Grounds not raised are deemed waived
You cannot file motions in piecemeal or one ground per motion.
Otherwise, the other grounds you did not put will be deemed waived. A
motion is like an octopus, with each tentacle as a ground. Those not
raised will be considered cut-off.
TN: But remember that there are grounds which can never be deemed waived
even if not raised in the motion.
Grounds not deemed waived even if not raised
1. Lack of Jurisdiction over the subject matter
2. Prescription
3. Res Judicata
4. Litis Pendentia
SEC 9. MOTION FOR LEAVE
MOTION FOR LEAVE
A motion for leave to file a pleading or motion shall be accompanied by
the pleading or motion sought to be admitted.
Motion for Leave of Court
A motion for leave of court must already be accompanied by the
pleading or motion sought to be admitted.
Example: If you want to file a motion for leave of court to amend the
complaint, you must already include your amended complaint.
TN: This is why the period to file an answer to an amended complaint is just 10
days because when you file a motion for leave of court, you already include the
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
same. 10 days is already enough since he is already given extra time to study the
amended complaint.
Effect of failure to comply
If the motion for leave is not accompanied by the pleading sought to be
admitted, the court will not act on your motion. It will be again be
considered a pro forma motion.
SEC 10. FORM
FORM
The Rules applicable to pleadings shall apply to written motions so far
as concerns caption, designation, signature, and other matters of form.
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RULE 16 – MOTION TO DISMISS
MOTION TO DISMISS
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.
When the defendant receives summons and complaint, the defendant is
supposed to answer the complaint in 15 days. But the defendant may
not answer right away and file a motion to dismiss instead.
Q. When to file a motion to dismiss?
Within the period to answer (15 days)
Q. Can he file beyond the 15 day period?
Yes. He can file even after the 15 days or even for the first time on
appeal if the grounds are those exceptions mentioned – those that are
never deemed waived.
A. Prescription
B. Res judicata
C. Litis pendentia
D. Lack of jurisdiction over the subject matter
SEC 1. GROUNDS FOR A MOTION TO DISMISS
GROUNDS
Within the time for but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may be made on any of
the following grounds:
(a) That the court has no jurisdiction over the person of the defending
party
(b) That the court has no jurisdiction over the subject matter of the
claim
(c) That venue is improperly laid
(d) That the plaintiff has no legal capacity to sue
(e) That there is another action pending between the same parties
for the same cause; (Litis pendentia)
(f) That the cause of action is barred by a prior judgment or by the
statute of limitations (Res Judicata and Prescription)
(g) That the pleading asserting the claim states no cause of action
(h) That the claim or demand set forth in the plaintiff's pleading has
been paid, waived, abandoned, or otherwise extinguished
(i) That the claim on which the action is founded is unenforceable
under the provisions of the statute of frauds, and
(j) That a condition precedent for filing the claim has not been
complied with
1st. COURT HAS NO JURISDICTION OVER THE PERSON OF THE
DEFENDING PARTY
GR: Service of summons acquires jurisdiction over the person of the
defendant.
TN: No summons and improper summons – no jurisdiction over the person of the
defendant
XPN: If he voluntarily submits himself to the court even if he is not yet
served with summons.
A. Waiver
1. Voluntary appearance
2. Filing a pleading, i.e. extension to file an answer
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.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
De Midgely v. Ferandos
TN: ABANDONED RULING
If the defendant questions the jurisdiction of the court on the ground of
invalid service of summons, he may do so by way of special appearance.
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
deemed to have admitted himself to the jurisdiction of the court because
in which case, you are already asking of affirmative relief.
La Naval Case
TN: CONTROLLING RULING
If you file a motion to dismiss based on ground number 1, you should
do it by way of special appearance. The motion for a special appearance
is purposely to question the jurisdiction of the court because of improper
service of summons. Therefore, you are not precluded from including
other grounds especially because of the omnibus motion rule.
In other words, inclusion of other grounds aside from lack of jurisdiction
over the person of the defendant is not tantamount to submission to the
jurisdiction of the court.
2nd. COURT HAS NO JURISDICTION OVER SUBJECT MATTER
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
matter. This is especially true since jurisdiction is conferred by law.
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
the answer by way of a special defense. You can even raise this ground
any time, even for the first time on appeal.
GR: The ground of lack of jurisdiction over the subject matter may be
raised anytime, even for the first time on appeal.
XPN: When there is unreasonable delay in raising the issue by reason of
estoppel by laches. (Tijam v. Sibonghanoy – raised for the first time in
the Supreme Court)
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
unreasonable delay. Laches does not have a fixed number of years unlike
prescription.
3rd. IMPOROPER VENUE
The case was filed in the correct court but in the wrong venue.
Example: Filed an accion publiciana case in RTC Cebu involving a
property located in Mandaue. Both have jurisdiction over the nature of
the action, but there is improper venue.
TN: RTC is the proper court, but the proper venue is RTC Mandaue.
4th. PLAINTIFF’S LACK OF LEGAL CAPACITY TO SUE
Two types of lack of legal capacity to sue:
1. Plaintiff does not possess the necessary qualifications to appear at
the trial (i.e. minor or insane)
2. Plaintiff does not have the character or representation which he
claims such (i.e. agent or guardian without the required authority
from the real party in interest)
Example: The litigant claims to be the attorney in fact but there is no SPA
5th. LITIS PENDENTIA
Another action is pending between the same parties for the same cause
of action. This presupposes that there is another case that is pending,
these two cases are also identical.
Elements of Litis Pendentia
1. Same identity of parties between the two actions
2. Same identity of the rights asserted and the relief prayed for
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3. The relief must be founded on the same facts
4. The identity in these particulars should be such that any judgment
which may be rendered on the other action will, regardless of which
party is successful, amount to res judicata in the action under
consideration.
TN: This simply means that regardless of who wins in the first case, the
effect is that res judicata will result in the second case
Teodoro v. Mirasol
When there is litis pendentia, it does not necessarily follow that the second
case filed must be dismissed.
Difference between litis pendentia and forum shopping
They are basically the same. But forum shopping is the act of filing
several cases of the same cause of action in different salas to obtain
favorable judgment or handling of the case. Litis Pendentia occurs when
you forum shop and two of the cases you filed are actually heard and
pending on different courts. This is the ground to dismiss.
A certificate of non-forum shopping is designed precisely to prevent litis
pendentia from ever occurring.
6th. THE CAUSE OF ACTION IS BARRED BY PRIOR JUDGMENT
OR BY STATUTE OF LIMITATION
Two grounds referred to:
1. Res judicata
2. Prescription
Litis Pendentia v. Res Judicata
They are the same in the sense that they are both the same cases
pending in different courts. The difference is that in Litis Pendentia,
the case has not been decided yet, merely pending. In res judicata,
the other case has already been decided.
7th. FAILURE TO STATE A CAUSE OF ACTION
To determine if there is cause of action, the court will only rely on what
is alleged in the complaint and nothing more.
The court will ask itself this question in deciding to dismiss:
“Assuming that all the allegations are true, does it state a valid cause of
action? Do all of the elements of a valid cause of action exist?”
TN: No need for hearing.
8th. PLAINTIFF’S CLAIM HAS ALREADY BEEN PAID, WAIVED,
ABANDONED OR OTHERWISE EXTINGUISHED
This can be applied especially on collection of sum of money but it has
already been paid or otherwise extinguished
Reverse trial
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
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
that you have not.
9th. THE CLAIM UNENFORCEABLE UNDER THE STATUTE OF
FRAUDS
There are certain contracts that must be in writing under the Statute of
Frauds in order to be enforced or proved in court.
Reason: We cannot all the time rely on the memory of man.
Effect of failure to put in writing
Contracts that need to be in writing but were not cannot be proven using
parol evidence. They are still valid, only that, not enforceable in courts,
unless there is already partial execution/performance.
Examples of transactions that must be in writing:
1. Actions that cannot be done within one year
2. If it involves personal property or money where the value is more
than P500
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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

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CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
SEC 6. PLEADING GROUNDS AS AFFIRMATIVE DEFENSES
PLEADING GROUNDS AS AFFIRMATIVE DEFENSES
If no motion to dismiss has been filed, any of the grounds for dismissal
provided for in this Rule may be pleaded as an affirmative defense in
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.
The dismissal of the complaint under this section shall be without
prejudice to the prosecution in the same or separate action of a
counterclaim pleaded in the answer.
Pleading grounds as affirmative defense
You may file a motion to dismiss but it can be easily corrected by the
other party by amending the complaint. It is better to just file an answer
right away and include the ground for the motion to dismiss as a special
affirmative defense.
In which case, the plaintiff cannot easily amend his complaint and the
defenses are just the same. Besides, when you file your answer you can
always ask the court for a preliminary hearing for your special affirmative
defense. If you can prove the special affirmative defenses in court, then
there is no need to go through the whole trial.
TN: Preliminary hearing is different from pre-trial. Preliminary hearing is actually a
hearing of your motion to dismiss that is incorporated in your answer that you
wanted to be heard first.
RULE 17 – DISMISSAL OF ACTIONS
DISMISSAL OF ACTIONS
Q. What is the difference between Rule 16 and Rule 17?
 Dismissal in Rule 16 – at the instance of the defendant
 Dismissal in Rule 17 – at the instance of the plaintiff
a. Matter of right (Sec 1)
b. Matter of judicial discretion (Sec 2)
SEC 1. DISMISSAL UPON NOTICE BY PLAINTIFF
DISMISSAL UPON NOTICE BY PLAINTIFF
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
summary judgment. Upon such notice being filed, the court shall issue
an order confirming the dismissal. Unless otherwise stated in the notice,
the dismissal is without prejudice, except that a notice operates as an
adjudication upon the merits when filed by a plaintiff who has once
dismissed in a competent court an action based on or including the same
claim.
TN: DISMISSAL AS A MATTER OF RIGHT.
When a matter of right
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
3. When there is no motion for summary judgment yet
Q. How is it done?
By filing a notice of dismissal.
TN: Notice of dismissal is sent to the court only. The court will have to grant the
same since it is still a matter of right.
Q. Is the dismissal with prejudice to the refiling of the case?
GR: No. The dismissal is without prejudice to the refiling of the plaintiff
of the case.
XPNs:
1. When the order of dismissal provides otherwise
2. Two dismissal rule
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Two dismissal rule
Refers to a rule that a notice of voluntary dismissal operates as an
adjudication on the merits when it is filed by a plaintiff who has already
dismissed the same claim in another court.
TN: The second time you ask the court to dismiss your action, you need leave of
court if you want to refile your case.
SEC 1. DISMISSAL UPON MOTION OF PLAINTIFF
DISMISSAL UPON MOTION OF PLAINTIFF
Except as provided in the preceding section, a complaint shall not be
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
counterclaim has been pleaded by a defendant prior to the service upon
him of the plaintiff’s motion for dismissal, the dismissal shall be limited
to the complaint.
The dismissal shall be without prejudice to the right of the defendant to
prosecute his counterclaim in a separate action unless within fifteen (15)
days from notice of the motion he manifests his preference to have his
counterclaim resolved in the same action. Unless otherwise specified in
the order, a dismissal under this paragraph shall be without prejudice.
A class suit shall not be dismissed or compromised without the approval
of the court.
TN: DISMISSAL AS A MATTER OF DISCRETION.
When a matter of judicial discretion
When the answer was already received by the plaintiff.
Effect of grant of dismissal as regards the counterclaim of the
defendant
If the motion to dismiss is granted by the court, the dismissal of the
action will not include the counterclaim of the defendant. It is the option
of the defendant to whether to hear the case in the same court or file
the counterclaim as another separate case in another court.
 If compulsory counterclaim – counterclaim will have to heard in
the same court
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
provides otherwise.
SEC 3. DISMISSAL DUE TO FAULT OF PLAINTIFF
DISMISSAL DUE TO FAULT OF PLAINTIFF
If, for no justifiable cause, the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the complaint, or to prosecute
his action for an unreasonable length of time, or to comply with these
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
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
an adjudication upon the merits, unless otherwise declared by the court.
TN: THIS DISMISSAL IS DONE ONLY AT THE INSTANCE OF THE COURT.
Grounds for dismissal due to fault of the plaintiff
1. When plaintiff fails to appear on the date of the presentation of his
evidence in chief
 Usually the court will not dismiss it right away. It will move the hearing
to another date, warning the plaintiff that the next time, it will dismiss
the case
 Not every instance of absence of the plaintiff can be a ground. If the
plaintiff has presented evidence or testified already, he need not attend
the subsequent hearing.
2. When plaintiff fails to prosecute his case for an unreasonable
length of time
 It must be the plaintiff or his counsel to file the motion for hearing since
latter is interested to move the case
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
 If you do not do anything to move your case, the court will dismiss your
case
 However, based on the new ruling it is no longer mandatory for the
plaintiff to set it for pre-trial, the clerk of court may do so
 But if the plaintiff is dilly-dallying in the prosecution, then it may be a
ground to dismiss the case
 Example: The court ordered the plaintiff to help the court locate the
defendant to serve the summons, and the plaintiff did not do anything
nor did the plaintiff return to the court, then this could be interpreted as
2nd ground.
3. When plaintiff fails to comply with the rules of Court or any order
of the court for no justifiable reason or case.
The ground provides that it must be for no justifiable reason. So if the order
of the court is not valid, there is justifiable reason. For example, if the plaintiff
dies and the court says to amend the complaint to include the heirs. This is
not a valid order, this is wrong, what should have been done was a
substitution of parties. So you can refuse to follow order.
SEC 4. DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, ETC.
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM, OR THIRD-
PARTY COMPLAINT
The provisions of this Rule shall apply to the dismissal of any
counterclaim, cross-claim, or third-party complaint. A voluntary
dismissal by the claimant by notice as in section 1 of this Rule, shall be
made before a responsive pleading or a motion for summary judgment
is served or, if there is none, before the introduction of evidence at the
trial or hearing.
RULE 18 – PRE-TRIAL
PRE-TRIAL
The stage in the litigation of action where the parties are called by the
court in a conference to find avenue of amicable settlement of the case.
SEC 1. WHEN CONDUCTED
WHEN CONDUCTED
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.
Q. When shall pre-trial be conducted?
Pre-trial shall be conducted after all the issues are joined (issues are
joined when last pleading is filed)
TN: At least complaint or answer is filed, the issues can be identified for resolution,
hence, can be joined.
SEC 2. NATURE AND PURPOSE
NATURE AND PURPOSE
The pre-trial is mandatory. The court shall consider:
A. The possibility of an amicable settlement or of a submission to
alternative modes of dispute resolution.
 Usually the very first thing the judge wants
 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
 If there is settlement, it will be sent for approval to the court, then
renders the Judgment by Compromise accordingly
 The judge can even suspend the hearing for three months just for the
parties to settle
B. The simplification of the issues.
C. The necessity or desirability of amendments to the pleadings.
D. The possibility of obtaining stipulations or admissions of facts and
of documents to avoid unnecessary proof.
 Both parties shall agree on the facts
 If they agree, there is no need to present evidence to establish such
fact
 Only the disputed facts shall be resolved by evidence during the
hearing
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E. The limitation of the number of witnesses.
F. The advisability of a preliminary reference of issues to a
commissioner.
 Only resort to this if there are matters that the judge cannot resolve
because he needs an expert opinion
 Commissioner will determine the facts
 Example: Such as in a case involving boundaries of land – geodetic
engineer; Review books of accounts by referring to an accountant
G. The propriety of rendering judgment on the pleadings, or
summary judgment, or of dismissing the action should a valid
ground therefor be found to exist.
 Whether or not there really is an issue to be heard with a hearing or
can it be resolved based on the pleadings.
 Happens when the answer of the defendant:
1. Fails to tender an issue; or
2. Otherwise admits the allegations of the complaint
Example: If the case is for collection of sum of money, and the
answer admits the debt but the defense is just that the defendant
does not have the necessary funds yet. This is not a valid
defense.
H. The advisability or necessity of suspending the proceedings.
This is in the case were amicable settlement cannot be had yet, parties
needed more sufficient time to settle the matter
I. Such other matters as may aid in the prompt disposition of the
action.
SEC 3. NOTICE OF PRE-TRIAL
NOTICE OF PRE-TRIAL
The notice of pre-trial shall be served on counsel, or on the party who
has no counsel. The counsel served with such notice is charged with the
duty of notifying the party represented by him.
There must be a written notice of pre-trial
Before pre-trial, there must be written notice of pre-trial provided for by
the clerk of court and sent to the lawyers of both parties.
GR: Notice to the lawyer is notice to the client.
XPN: If there is a gross negligence on the part of the lawyer that
deprived the right of the client to due process.
SEC 4. APPEARANCE OF PARTIES
APPEARANCE OF PARTIES
It shall be the duty of the parties and their counsel to appear at the pre-
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
authorized in writing to enter into an amicable settlement, to submit to
alternative modes of dispute resolution, and to enter into stipulations or
admissions of facts and of documents.
Appearance of parties in pre-trial
GR: Presence of parties and their lawyers is mandatory
XPNs: The appearance of parties may be excused when:
1. There is valid or justifiable reason for his absence (e.g. sickness)
2. He authorized a representative to appear for him (e.g. attorney-
in-fact)
In case of authorized representative
In the party is a natural person
The person authorized must be clothed with proper authority to enter
into settlement and stipulation of facts.
TN: SPA is not enough. It must be written authority to settle the case
amicably and to enter into any of the alternative modes of resolution.
It must be full authority in the:
1. Settlement of facts
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2. Admission of facts
3. Entry into settlement agreement
If the party is a corporation
The authority must be through a Board resolution
A. Could be president or general manager
B. The board resolution must also grant the authorized person to
discuss settlement of the case
Q. What is the effect if the authority is invalid?
It is as if he did not attend the pre-trial.
SEC 5. EFFECT OF FAILURE TO APPEAR
EFFECT OF FAILURE TO APPEAR
The failure of the plaintiff to appear when so required pursuant to the
next preceding section shall be cause for dismissal of the action. The
dismissal shall be with prejudice, unless other-wise ordered by the court.
A similar failure on the part of the defendant shall be cause to allow the
plaintiff to present his evidence ex parte and the court to render
judgment on the basis thereof.
Effects of failure to appear:
A. Plaintiff – dismissal with prejudice
B. Defendant – court will order the plaintiff to present his evidence
ex parte
Remedy of the defendant: File a motion for reconsideration and not a
motion to lift default. If court grants the motion for reconsideration, no
need to set another pre-trial.
SEC 6. PRE-TRIAL BRIEF
PRE-TRIAL BRIEF
The parties shall file with the court and serve on the adverse party, in
such manner as shall ensure their receipt thereof at least three (3) days
before the date of the pre-trial, their respective pre-trial briefs which
shall contain, among others:
(a) A statement of their willingness to enter into amicable settlement
or alternative modes of dispute resolution, indicating the desired
terms thereof;
(b) A summary of admitted facts and proposed stipulation of facts;
(c) The issues to be tried or resolved;
(d) The documents or exhibits to be presented stating the purpose
thereof;
(e) A manifestation of their having availed or their intention to avail
themselves of discovery procedures or referral to commissioners;
and
(f) The number and names of the witnesses, and the substance of
their respective testimonies.
Montie: All that you need to say in the pre-trial, put it in writing, that’s
your pre-trial brief.
When to submit pre-trial brief
Three days before the pre-trial
Effects of failure to file pre-trial brief
A. Plaintiff – dismissal with prejudice
B. Defendant – same effect as failure to appear at the pre-trial. The
court will order the plaintiff to present his evidence ex parte.
SEC 6. RECORD OF PRE-TRIAL
RECORD OF PRE-TRIAL
The proceedings in the pre-trial shall be recorded. Upon the termination
thereof, the court shall issue an order which shall recite in detail the
matters taken up in the conference, the action taken thereon, the
amendments allowed to the pleadings, and the agreements or
admissions made by the parties as to any of the matters considered.
Should the action proceed to trial, the order shall, explicitly define and
7|U N I V E R S I T Y O F S A N C A R L O S
limit the issues to be tried. The contents of the order shall control the
subsequent course of the action, unless modified before trial to prevent
manifest injustice.
Record of Pre-trial
The proceeding for pre-trial shall be recorded, summarized, and
thereafter the court will issue the pre-trial order.
Q. What is the relevance of a pre-trial order?
The pre-trial order shall govern the subsequent order of the cases.
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.
RULE 19 – INTERVENTION
INTERVENTION
A pleading by a person, not party to a case, filed in order to make him
a party to the case.
 The intervenor protects his interest
 He may side with the plaintiff, defendant or even contradict both
 Motion to intervene is just ancillary to the main case
SEC 1. WHO MAY INTERVENE
WHO MAY INTERVENE
A person who has a legal interest in the matter in litigation, or in the
success of either of the parties, or an interest against both, or is so
situated as to be adversely affected by a distribution or other disposition
of property in the custody of the court or of an officer thereof may, with
leave of court, be allowed to intervene in the action. The court shall
consider whether or not the intervention will unduly delay or prejudice
the adjudication of the rights of the original parties, and whether or not
the intervenors rights may be fully protected in a separate proceeding.
Q. What are the grounds for intervention?
A. The intervenor has a legal interest on the matter under litigation
B. The intervenor has a legal interest in the success of either of the
parties
C. The intervenor has a legal interest against both
D. The intervenor is so situated as to be adversely be affected by a
distribution or other disposition of property in the custody of the
court or of an offense thereof
Example:
A and B have a dispute over the ownership of a parcel of land. X comes
into the picture and claims he is the real owner, but he was not a party
to the case because the case was only between A and B. X may
intervene in this case to protect his interest.
Leave of court required
A motion to intervene is in the sound discretion of the court to either
deny or grant.
TN: Must be along with pleadings that you want the court to admit
(pleading in intervention)
Factors to consider whether or not to allow intervention:
A. Whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties.
B. Whether or not the intervenor’s right may be fully be protected in
a separate proceeding.
TN: If you can do it in separate proceedings, then do it there.
SEC 2. TIME TO INTERVENE
TIME TO INTERVENE
The motion to intervene may be filed at any time before rendition of
judgment by the trial court. A copy of the pleading-in-intervention shall
be attached to the motion and served on the original parties.
Q. When can you file intervention?
Any time before the court enters judgment
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Montie: But if you intervene when the case is already submitted for decision, the
court will most likely deny the motion and suggest that you file it in a separate
proceeding. Anyway, the intervenor is not a party and hence, will not be bound by
the judgment. It’s too late to intervene at this point (Not sure if binding or only
Montie’s opinion)
Q. How can you file?
Attach a copy of the pleading-in-intervention to the motion and serve to
original parties.
Q. What is the effect of dismissal of main action on the
intervention?
Big Country Ranch Case
The dismissal of the main action is the dismissal of intervention because
the latter is ancilliary to the main case.
Metropolitan Bank and Trust Company Case
The dismissal of the main action is not dismissal of intervention if the
latter can stand alone/independent to the main case. The intervenor
must be allowed to prove his case.
Summary of Rules:
If the complaint is dismissed, look at the Intervention.
 If intervention is ancilliary to the main case, then it has no leg to
stand on – Intervention is dismissed
 If the intervention can stand independently – Intervention subsists.
Q. What is the remedy of the intervenor in case intervention is
denied?
Special action for certiorari if there is grave abuse of discretion.
TN: Mandamus will not lie because intervention is discretionary on the part of the
judge.
SEC 3. PLEADINGS-IN-INTERVENTION
PLEADINGS-IN-INTERVENTION
The intervenor shall file a complaint-in-intervention if he asserts a claim
against either or all of the original parties, or an answer-in-intervention
if he unites with the defending party in resisting a claim against the
latter.
Pleadings in intervention
A. Complaint in intervention – if intervenor sides with the plaintiff
B. Answer in intervention – if intervenor sides with the defendant
C. Complaint in intervention – If intervenor does not side with either
(as when the intervenor makes the plaintiff and defendant as
defendants)
SEC 4. ANSWER TO COMPLAINT-IN-INTERVENTION
ANSWER TO COMPLAINT-IN-INTERVENTION
The answer to the complaint-in-intervention shall be filed within fifteen
(15) days from notice of the order admitting the same, unless a different
period is fixed by the court.
Q. When shall the answer be filed?
Within 15 days from notice of the order admitting the complaint.
RULE 20 – CALENDAR OF CASES
SEC 1. CALENDAR OF CASES
CALENDAR OF CASES
The clerk of court, under the direct supervision of the judge, shall keep
a calendar of cases for pre-trial, for trial, those whose trials were
adjourned or postponed, and those with motions to set for hearing.
Preference shall be given to habeas corpus cases, election cases, special
civil actions, and those so required by law
Duty of the Clerk of Court
The Clerk of court shall keep a calendar of cases
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Q. Are there cases which shall be given preference?
Yes. Preference shall be given to habeas corpus cases, election cases,
special civil actions and those so required by law.
SEC 2. ASSIGNMENT OF CASES
ASSIGNMENT OF CASES
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
of which adequate notice shall be given so as to afford interested parties
the opportunity to be present.
Q. How are assignment of cases done?
Cases are raffled to know where it will be heard.
 The raffle is attended by the executive judge of the sala, with two
other judges.
 The raffle open to the public
 Notice shall be given to the parties
Q. When shall assignment of cases take place?
GR: Usually Tuesday afternoons.
XPNs: Cases which are urgent or needs immediate action:
A. Writ of preliminary injunction
B. TRO
RULE 21 – SUBPOENA
SUBPOENA
A subpoena is a written order from the court requiring a person to
appear in order to testify. There are also instances where you are not
only required to testify but also to bring some records to present in
court.
SEC 1. SUBPOENA AND SUBPOENA DUCES TECUM
SUBPOENA AND SUBPOENA DUCES TECUM
Subpoena is a process directed to a person requiring him to attend and
to testify at the hearing or the trial of an action, or at any investigation
conducted by competent authority, or for the taking of his deposition.
It may also require him to bring with him any books, documents, or
other things under his control, in which case it is called a
subpoena duces tecum.
Q. What are the two kinds of subpoena?
1. Subpoena duces tecum – Bring documents and identify in court
2. Subpoena ad testificandum – appeal in court and testify
TN: Subpoena duces tecum ad testificandum – if both to bring documents and
testify in court.
SEC 2. BY WHOM ISSUED
BY WHOM ISSUED
The subpoena may be issued by —
A. The court before whom the witness is required to attend
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
investigations conducted by said officer or body
D. Any Justice of the Supreme Court or of the Court of Appeals in any
case or investigation pending within the Philippines.
When application for a subpoena to a prisoner is made, the judge or
officer shall examine and study carefully such application to determine
whether the same is made for a valid purpose.
No prisoner sentenced to death, reclusion perpetua or life imprisonment
and who is confined in any penal institution shall be brought outside the
said penal institution for appearance or attendance in any court unless
authorized by the Supreme Court.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
Q. Who may issue a subpoena?
1. The court before whom the witness is required to attend.
TN: Issued by the court where the case is pending and where the witness is
called.
2. The court of the place where the deposition is to be taken
Refers only to deposition taking.
Ex: The case is in Cebu but the witness is residing in Tacloban and not willing
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
to the witness to get the testimony.
3. The officer or body authorized by law to do so in connection with
investigations conducted by said officers or body.
Refers to the officers who are in the ground who are allowed to make
investigation under their investigatory power.
Examples:
1. Fiscal/Prosecutor during preliminary investigation
2. NBI
4. Any justice of supreme court or the court of appeals in any case or
investigation pending in the Philippines
TN: If subpoena is issued by the court and you did not obey, you can be
cited for contempt of court.
SEC 3. FORM AND CONTENTS
FORM AND CONTENTS
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
required, and in the case of a subpoena duces tecum, it shall also
contain a reasonable description of the books, documents or things
demanded which must appear to the court prima facie relevant.
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
Summons requires you to answer the complaint. The format is the same.
SEC 4. QUASHING A SUBPOENA
QUASHING A SUBPOENA
The court may quash a subpoena duces tecum upon motion promptly
made and, in any event, at or before the time specified therein if it is
unreasonable and oppressive, or the relevancy of the books, documents
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.
The court may quash a subpoena ad testificandum on the ground that
the witness is not bound thereby. In either case, the subpoena may be
quashed on the ground that the witness fees and kilometrage allowed
by these Rules were not tendered when the subpoena was served.
Q. What are the grounds for a motion to quash a subpoena?
The grounds depend on the kind of subpoena.
Subpoena Duces Tecum
1. If subpoena is unreasonable or oppressive
2. The relevance of the books, things or documents does not appear.
3. The person in whose behalf the subpoena is issued fails to
advance the reasonable cost for the production thereof.
Example: Photocopying expenses
Subpoena Ad Testificandum
1. That the witness is not bound thereby (Viatory right)
Right of a witness to refuse the subpoena because he resides
more than 100km from the court; fear of riding a plane or ferry
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SEC 5. SUBPOENA FOR DEPOSITIONS
SUBPOENA FOR DEPOSITIONS
Proof of service of a notice to take a deposition, as provided in sections
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
of the court of the place in which the deposition is to be taken. The clerk
shall not, however, issue a subpoena duces tecum to any such person
without an order of the court.
Subpoena for Deposition
This relates to the second person enumerated by the rules who may
issue a subpoena.
A. Notice must be made for all parties for the deposition
B. Must be in writing and must be properly served
Montie: Before the judge issues the subpoena to the witness, there must be proof
that the requesting party has notified all parties regarding the deposition-taking.
The opposing party is invited to attend the deposition for purposes of cross-
examination. The opposing party may choose not to attend.
SEC 6. SERVICE
SERVICE
Service of a subpoena shall be made in the same manner as personal or
substituted service of summons. The original shall be exhibited and a
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
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
need not be made.
The service must be made so as to allow the witness a reasonable time
for preparation and travel to the place of attendance. If the subpoena
is duces tecum, the reasonable cost of producing the books, documents
or things demanded shall also be tendered.
Q. How shall subpoena be served?
In the same manner as personal or substituted service of summons.
SEC 7. PERSONAL APPEARANCE IN COURT
PERSONAL APPEARANCE IN COURT
A person present in court before a judicial officer may be required to
testify as if he were in attendance upon a subpoena issued by such court
or officer.
GR: One cannot be compelled to testify if he is not served with a written
subpoena.
XPN: If said person is inside the courtroom during hearing of the case,
he may be compelled to testify without a subpoena.
SEC 8. COMPELLING ATTENDANCE
COMPELLING ATTENDANCE
In case of failure of a witness to attend, the court or judge issuing the
subpoena, upon proof of the service thereof and of the failure of the
witness, may issue a warrant to the sheriff of the province, or his deputy,
to arrest the witness and bring him before the court or officer where his
attendance is required, and the cost of such warrant and seizure of such
witness shall be paid by the witness if the court issuing it shall determine
that his failure to answer the subpoena was willful and without just
excuse.
SEC 9. CONTEMPT
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
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disobedience thereto shall be punished in accordance with the applicable
law or Rule.
Q. What is the effect of failure to obey a subpoena?
GR: He may be cited in contempt of court. He can be imprisoned until
he testified.
XPN: Viatory right of a witness (The right to refuse to testify because he
lives more than 100 kilometres from the court)
XPN to XPN: If criminal case.
People v. Montejo
Viatory right applies only to civil cases. Not applicable to Criminal Cases
because of the Constitutional right of the accused to have a compulsory
process to secure the attendance of his witnesses and production of
pieces of evidence in criminal cases.
SEC 10. EXCEPTIONS
EXCEPTIONS
The provisions of sections 8 and 9 of this Rule shall not apply to a
witness who resides more than one hundred (100) kilometres from his
residence to the place where he is to testify by the ordinary course of
travel, or to a detention prisoner if no permission of the court in which
his case is pending was obtained.
RULE 22 – COMPUTATON OF TIME
SEC 1. HOW TO COMPUTE TIME
HOW TO COMPUTE TIME
In computing any period of time prescribed or allowed by these Rules,
or by order of the court, or by any applicable statute, the day of the act
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
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
next working day.
SEC 2. EFFECT OF INTERRUPTION
EFFECT OF INTERRUPTION
Should an act be done which effectively interrupts the running of the
period, the allowable period after such interruption shall start to run on
the day after notice of the cessation of the cause thereof. The day of
the act that caused the interruption shall be excluded in the computation
of the period.
Rules on how to compute time:
1. Exclude the first day include the last day.
2. Effect of interruption: (i.e. motion to dismiss; bill of particulars)
A. The day of the act that caused the interruption shall be
excluded in the computation of the period.
B. The allowable period after such interruption shall start to run
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
holiday in the place where the court sits, the time shall not run until
the next working day.
Montie’s Application of Rules on Computation on Period to File an
Answer (Figures changed for easier understanding):
 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
until January 16 to answer. (1+15=16)
 But instead of filing an answer, X files a motion to dismiss the case
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
4 are counted. In total, only 3 days, of the 15 day period has
elapsed. X has 12 days left to file an answer as balance should the
motion be denied.
 The judge denied the motion to dismiss and X receives the order
of denial on January 10. Applying the 2nd Rule (B), exclude January
10. The balance of the period starts to run on January 11. X has
until January 22 to file his answer. (10+12=22)
 January 22 is a Saturday. Applying 3rd Rule, X can file until the next
working day.
MODES OF DISCOVERY
MODES OF DISCOVERY
Modes of discovery can be used to terminate the case early through
amicable settlement. Here, the evidentiary facts may be revealed
through the modes.
Q. What are the purposes of the modes?
To know the evidence of the other party to guide you what step to take.
The modes of discovery are intended to compel the parties to lay all
their cards on the table to avoid surprises. Also, this is for the parties to
know whether to go through the case or graciously settle.
TN: The Rules of Court is never intended for the parties to win the case
through technicalities.
Q. What are the different modes of discovery?
A. Deposition Taking (Rule 23, 24)
B. Written Interrogatories to Parties (Rule 25)
C. Request for admission of adverse parties (Rule 26)
D. Production or Inspection of Documents and things (Rule 27)
E. Physical and Mental Examination of Persons (Rule 28)
RULE 23 – DEPOSITIONS PENDING ACTION
DEPOSITION TAKING
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
knowledge about the subject matter of the case
Purpose: To know the evidence of the other party.
Q. Are you compelled to use the testimony taken during the
deposition?
No. You are not compelled to use the testimony, taken through
deposition, of that witness or prospective witness during the trial of the
case
Q. How is the subject of the deposition called?
Deponent.
Q. What are the two kinds of deposition?
1. Deposition pending action (De Benne Esse)
2. Deposition Pending appeal or before action (In Perpetuam Rie
Memoriam)
SEC 1. WHEN MAY BE TAKEN
DEPOSITIONS PENDING ACTION, WHEN MAY BE TAKEN
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
after an answer has been served, the testimony of any person, whether
a party or not, may be taken, at the instance of any party, by deposition
upon oral examination or written interrogatories.
The attendance of witnesses may be compelled by the use of a
subpoena as provided in Rule 21. Depositions shall be taken only in
accordance with these Rules. The deposition of a person confined in
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prison may be taken only by leave of court on such terms as the court
prescribes.
Q. When may a deposition pending action be taken?
A. With leave of court – When the court has acquired jurisdiction over
the defendant but the defendant has no answer yet.
Example: Defendant was served with summons. Within the 15 day period
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.
B. Without leave of court – when there is already an answer.
In this case, there is only a need to send notice to take deposition to the
other party and the court. Only notice is needed because it is a matter of
right.
Daits Note: Don’t be confused. Unlike the rules on amendment,
deposition taking as a matter of right can be only exercised after the
filing of the answer by the defendant.
Q. What are the modes of deposition?
1. Oral examination
You ask questions to the deponent directly – orally. This is the
same as direct and cross examination. Similar to the trial of the
case before the court, except that it is not done in the court
where the case is pending, but in another place before a
deposition officer.
2. Written interrogatories
The requesting party who wants to take the depositions will
write all his questions in a paper and send to the deposition
officer who will also send it to the lawyer of the other party who
will write all the answers.
Q. When can deposition be used?
SEC 2. SCOPE OF EXAMINATION
SCOPE OF EXAMINATION
Unless otherwise ordered by the court as provided by section 16 or 18
of this Rule, the deponent may be examined regarding any matter, not
privileged, which is relevant to the subject of the pending action,
whether relating to the claim or defense of any other party, including
the existence, description, nature, custody, condition, and location of
any books, documents, or other tangible things and the identity and
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
privileged information.
Examples.
1. Confession to the priest
2. Lawyer-client relationship
3. Doctor-patient relationship
4. Husband and wife conversations
SEC 3. EXAMINATION AND CROSS-EXAMINATION
EXAMINATION AND CROSS-EXAMINATION
Examination and cross-examination of deponents may proceed as
permitted at the trial under sections 3 to 18 of Rule 132. (3a, R24)
SEC 4. USE OF DEPOSITONS
USE OF DEPOSITIONS
At the trial or upon the hearing of a motion or an interlocutory
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
or represented at the taking of the deposition or who had due notice
thereof, in accordance with any one of the following provisions:
(a) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of deponent as a
witness.
11 | U N I V E R S I T Y O F S A N C A R L O S
(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
public or private corporation, partnership, or association which is
a party may be used by an adverse party for any purpose.
(c) The deposition of a witness, whether or not a party, may be used
by any party for any purpose if the court finds:
1. That the witness is dead.
2. That the witness resides at a distance more than one
hundred (100) kilometers from the place of trial or hearing,
or is out of the Philippines, unless it appears that his absence
was procured by the party offering the deposition.
3. That the witness is unable to attend or testify because of
age, sickness, infirmity, or imprisonment.
4. That the party offering the deposition has been unable to
procure the attendance of the witness by subpoena.
5. Upon application and notice, that such exceptional
circumstances exist as to make it desirable, in the interest of
justice and with due regard to the importance of presenting
the testimony of witnesses orally in open court, to allow the
deposition to be used.
(d) If only part of a deposition is offered in evidence by a party, the
adverse party may require him to introduce all of it which is
relevant to the part introduced, and any party may introduce any
other parts.
 Even before the trial starts
 When you take the deposition of any person, you are not
compelled to use the person as a witness
 If favorable, then you should use him. If not, then don’t.
 May take deposition of the other party but you are not compelled
to use the deposition during trial
 One use of deposition is for early disposition of the case by
amicable settlement, such as when you already know the
evidence against you, you may opt to settle instead.
1. To contradict or impeach the testimony of the deponent as a
witness
Admission of facts, genuineness of a document, etc.
Example: At the start of the trial, I already know that you are going to use
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
own testimony against him when you use him during the trial and he states
contradictory statements to the deposition I took.
2. Deposition of a party or an officer of the corporation may be used
by the adverse party for any purpose
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:
a) Is dead
b) Resides more than 100 kilometers from the court
c) Witness cannot testify because of age, sickness, or infirmity
d) Witness did not appear despite subpoena issued
Examples: Client may want to go abroad, therefore lawyers should take
deposition of the witness before he is no longer available for the trial.
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
dying, you cannot use his deposition as long as he is still alive since at
that moment, he is still present and available.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
SEC 5. EFFECT OF SUBSTITUTION OF PARTIES
EFFECT OF SUBSTITUTION OF PARTIES
Substitution of parties does not affect the right to use depositions
previously taken; and, when an action has been dismissed and another
action involving the same subject is afterward brought between the
same parties or their representatives or successors in interest, all
depositions lawfully taken and duly filed in the former action may be
used in the latter as if originally taken therefor.
SEC 6. OBJECTIONS TO ADMISSIBILITY
OBJECTIONS TO ADMISSIBILITY
Subject to the provisions of Section 29 of this Rule, objection may be
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
evidence if the witness were then present and testifying.
Q. Can the deposition officer rule on any objection?
No. The deposition officer cannot rule on objections because he is not a
judge. He can only note down the objections and present to the judge
during trial.
Example:
A lawyer may be requested to be the deposition officer. If there are objections
from the other party during the deposition taking, he will only note down the
objections and sent them back to the judge. This rule is also true even if the
deposition officer is a judge himself because he is not the judge assigned to the
case in the first place.
SEC 7. EFFECT OF TAKING DEPOSITIONS
EFFECT OF TAKING DEPOSITIONS
A party shall not be deemed to make a person his own witness for any
purpose by taking his deposition.
SEC 8. EFFECT OF USING DEPOSITIONS
EFFECT OF USING DEPOSITIONS
The introduction in evidence of the deposition or any part thereof for
any purpose other than that of contradicting or impeaching the
deponent makes the deponent the witness of the party introducing the
deposition, but this shall not apply to the use by an adverse party of a
deposition as described in paragraph (b) of section 4 of this Rule.
SEC 9. REBUTTING DEPOSITION
REBUTTING DEPOSITION
At the trial or hearing any party may rebut any relevant evidence
contained in a deposition whether introduced by him or by any other
party. (9, R24)
SEC 10 &11. BEFORE WHOM MAY DEPOSITIONS BE TAKEN
PERSONS BEFORE WHOM DEPOSITIONS MAY BE TAKEN
WITHIN THE PHILIPPINES
Within the Philippines, depositions may be taken before any judge,
notary public, or the person referred to in section 14 hereof.
Q. Who can be deposition officers if the deposition is taken in
the Philippines?
a) Judge where deponent resides
b) Notary public where deponent resides
c) Any authorized person to administer oath where deponent
resides
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
12 | U N I V E R S I T Y O F S A N C A R L O S
such person or officer as may be appointed by commission or under
letters rogatory; or (c) the person referred to in section 14 hereof.
Q. Who can be deposition officers if the deposition is take
outside the country?
1. On notice before a secretary of Embassy or Legation, Consul
general, Consul, Vice-consul, or consular agent of the RP.
TN: Communicate first with the Department of Foreign Affairs, and the latter
will designate which of the above will act as deposition officer .
2. Before such person or officer as may be appointed by commission
or under letters rogatory.
3. Any authorized person to administer oath
Q. How is deposition-taking outside of the country done?
1. By oral examination, or
2. By written interrogatories
Montie: But most probably through written interrogatories, because oral
examination is expensive since the parties will have to send their lawyers
abroad.
SEC 12. COMMISSION OR LETTERS ROGATORY
COMMISSION OR LETTERS ROGATORY
A commission or letters rogatory shall be issued only when necessary or
convenient, on application and notice, and on such terms, and with such
direction as are just and appropriate. Officers may be designated in
notices or commissions either by name or descriptive title and letters
rogatory may be addressed to the appropriate judicial authority in the
foreign country.
Q. Suppose we don’t have Embassy or Legation, Consul general,
Consul, Vice-consul, or consular agent of the RP in that
country?
Request a lawyer or any person authorized to administer oath in that
country to be the deposition officer by commission or letters rogatory.
How? File a leave of court where the case is pending, requesting that
the latter issue a Letter Commission to that Deposition Officer outside
the country.
Montie: The disadvantage if the deposition officer is a person by commission is
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
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
power. The remedy for this is letter rogatory.
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
contempt powers. So perhaps the disadvantage applies to both consuls and
persons appointed through letters commission (This is just an opinion to answer
future questions about the reviewer. Please verify)
Letter Rogatory
Court to court requests by way of letter. Requesting the foreign court to
assist in the deposition based on the principle of reciprocity (if a similar
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
issue a subpoena to the defendant and arrest him if he will not come.
However, this is done as last recourse. Courts here must first use Letter
Commission. There must be poof that the Deposition Officer by
commission attempted and failed to take the deposition because the
witness refused.
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DISQUALIFICATION BY INTEREST

13 | 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
to make shall be entered upon the deposition by the officer with a
statement of the reasons given by the witness for making them.
The deposition shall then be signed by the witness, unless the parties
by stipulation waive the signing or the witness is ill or cannot be found
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
the illness or absence of the witness or the fact of the refusal to sign
together with the reason be given therefor, if any, and the deposition
may then be used as fully as though signed, unless on a motion to
suppress under section 29 (f) of this Rule, the court holds that the
reasons given for the refusal to sign require rejection of the deposition
in whole or in part.
SEC 20. CERTIFICATION, AND FILING BY OFFICER
CERTIFICATION, AND FILING BY OFFICER
The officer shall certify on the deposition that the witness was duly
sworn to by him and that the deposition is a true record of the testimony
given by the witness. He shall then securely seal the deposition in an
envelope indorsed with the title of the action and marked "Deposition of
(here insert the name of witness)" and shall promptly file it with the
court in which the action is pending or send it by registered mail to the
clerk thereof for filing.
SEC 21. NOTICE OF FILING
NOTICE OF FILING
The officer taking the deposition shall give prompt notice of its filing to
all the parties.
SEC 22. FURNISHING COPIES
FURNISHING COPIES
Upon payment of reasonable charges therefor, the officer shall furnish
a copy of the deposition to any party or to the deponent.
SEC 23. FAILURE TO ATTEND OF PARTY GIVING NOTICE
FAILURE TO ATTEND OF PARTY GIVING NOTICE
If the party giving the notice of the taking of a deposition fails to attend
and proceed therewith and another attends in person or by counsel
pursuant to the notice, the court may order the party giving the notice
to pay such other party the amount of the reasonable expenses incurred
by him and his counsel in so attending, including reasonable attorney's
fees.
SEC 24. FAILURE OF PARTY TO SERVE SUBPOENA
FAILURE OF PARTY GIVING NOTICE TO SERVE SUBPOENA
If the party giving the notice of the taking of a deposition of a witness
fails to serve a subpoena upon him and the witness because of such
failure does not attend, and if another party attends in person or by
counsel because he expects the deposition of that witness to be taken,
the court may order the party giving the notice to pay to such other
party the amount of the reasonable expenses incurred by him and his
counsel in so attending, including reasonable attorney's fees.
Summary on Deposition upon oral examination
1. Notice sent first to the other party and to the court (Sec. 15)
2. Order of Protection of Parties and Opponent (Sec. 16 to 18)
 If the deposition amounts to harassment
3. How deposition upon oral examination taken (Sec.17 to 22)
 Deposition must have a transcriber to write everything right away
 The Transcript of Stenographic Notes will be shown to the parties if
there are no objects
 Then the parties will sign the transcript and it will be placed in a
brown envelope to be mailed to the court
14 | U N I V E R S I T Y O F S A N C A R L O S
 During the presentation of evidence, you can just say that you will
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
objecting as recorded in the deposition paper and ask for the ruling
of the judge of the said objection
4. Effect of Requesting Party’s Failure to attend and Serve
Subpoena (sec. 23 and 24)
DEPOSITION UPON WRITTEN INTERROGATORIES
SEC 25. RECORD OF EXAMINATION, OATH, OBJECTIONS
DEPOSITION UPON WRITTEN INTERROGATORIES; SERVICE
OF NOTICE AND OF INTERROGATORIES
A party desiring to take the deposition of any person upon written
interrogatories shall serve them upon every other party with a notice
stating the name and address of the person who is to answer them and
the name or descriptive title and address of the officer before whom the
deposition is to be taken. Within ten (10) days thereafter, a party so
served may serve cross-interrogatories upon the party proposing to take
the deposition. Within five (5) days thereafter, the latter may serve re-
direct interrogatories upon a party who has served cross-interrogatories.
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 26. OFFICERS TO TAKE RESPONSES & PREP RECORD
OFFICERS TO TAKE RESPONSES AND PREPARE RECORD
A copy of the notice and copies of all interrogatories served shall be
delivered by the party taking the deposition to the officer designated in
the notice, who shall proceed promptly, in the manner provided by
sections 17, 19 and 20 of this Rule, to take the testimony of the witness
in response to the interrogatories and to prepare, certify, and file or mail
the deposition, attaching thereto the copy of the notice and the
interrogatories received by him.
SEC 27. NOTICE OF FILING AND FURNISHING COPIES
NOTICE OF FILING AND FURNISHING COPIES
When a deposition upon interrogatories is filed, the officer taking it shall
promptly give notice thereof to all the parties, and may furnish copies
to them or to the deponent upon payment of reasonable charges
therefor.
Summary on Deposition upon written interrogatories
(As mentioned by Monteclar)
1. Written interrogatories shall be served upon every party with
notice
2. The notice shall state the name and address of the person to
answer it
3. The name, title and address of the position officer
4. Within 10 days the person asked ma serve cross-interrogatories
5. Deposition officer shall give notice of its filing in court (Sec.27)
How deposition upon written interrogatories taken:
 The parties and counsel will not anymore go to the place of the witness
 Only the deposition officer, the stenographer and the witness or deponent
will be present
 The questions of the requesting party are already written, and sent to the
deposition officer and to all concerned parties
 The opposing party will also send their cross-Interrogatories to the
deposition officer and all concerned parties within 10 days from receipt of
interrogatories
 In every case, there should be a written notice served to other parties
 The deposition officer will ask the questions, deponent answers
 The deposition officer will send the questions and answers to court
 Deposition officer shall give notice of its filing in court (sec. 27)
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SEC 28. ORDER FOR PROTECTION
ORDER FOR THE PROECTION OF PARTIES AND DEPONENTS
After the service of the interrogatories and prior to the taking of the
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
shown, may make any order specified in sections 15, 16 and 18 of this
Rule which is appropriate and just or an order that the deposition shall
not be taken before the officer designated in the notice or that it shall
not be taken except upon oral examination. (28a, R24)
SEC 29. EFFECT OF ERRORS AND IRREGULARITIES
DEPOSITION
EFFECT OF ERRORS AND IRREGULARITIES IN DEPOSITIONS
As to notice
All errors and irregularities in the notice for taking a deposition are
waived unless written objection is promptly served upon the party giving
the notice.
As to disqualification of officer
Objection to taking a deposition because of disqualification of the officer
before whom it is to be taken is waived unless made before the taking
of the deposition begins or as soon thereafter as the disqualification
becomes known or could be discovered with reasonable diligence.
As to competency or relevancy of evidence
Objections to the competency of witness or the competency, relevancy,
or materiality of testimony are not waived by failure to make them
before or during the taking of the deposition, unless the ground, of the
objection is one which might have been obviated or removed if
presented at that time.
As to oral examination and other particulars
Errors and irregularities occurring at the oral examination in the manner
of taking the deposition in the form of the questions or answers, in the
oath or affirmation, or in the conduct of the parties and errors of any
kind which might be obviated, removed, or cured if promptly
prosecuted, are waived unless reasonable objection thereto is made at
the taking of the deposition.
As to form of written interrogatories
Objections to the form of written interrogatories submitted under
sections 25 and 26 of this Rule are waived unless served in writing upon
the party propounding them within the time allowed for serving
succeeding cross or other interrogatories and within three (3) days after
service of the last interrogatories authorized.
As to manner of preparation
Errors and irregularities in the manner in which the testimony is
transcribed or the deposition is prepared, signed, certified, sealed,
indorsed, transmitted, filed, or otherwise dealt with by the officer under
sections 17, 19, 20 and 26 of this Rule are waived unless a motion to
suppress the deposition or some part thereof is made with reasonable
promptness after such defect is, or with due diligence might have been,
ascertained.
RULE 24-DEPOSITIONS BEFORE ACTION/PENDING APPEAL
DEPOSITIONS BEFORE ACTION OR PENDING APPEAL
DEPOSITION BEFORE ACTION
Done before the case; There is no case filed yet.
Instances where deposition before action may be applicable
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.
3. You think there might be a case that will most likely be filed against
you
15 | U N I V E R S I T Y O F S A N C A R L O S
DEPOSITION PENDING APPEAL
You have lost the case in the lower court and you appealed. This is good
only when there are pieces of evidence newly discovered which is not
taken into account by the lower court.
Example:
Pending appeal you discovered evidence that could strip up your case in
your favor but the evidence involves the testimony of a dying witness.
If the CA grants your appeal, you already preserved your evidence.
DEPOSITIONS BEFORE ACTION
SEC 1. DEPOSITIONS BEFORE ACTION, PETITION
DEPOSITIONS BEFORE ACTION, PETITION
A person who desires to perpetuate his own testimony or that of another
person regarding any matter that may be cognizable in any court of the
Philippines may file a verified petition in the court of the place of the
residence of any expected adverse party.
Q. If leave of court required? If yes, where do you file it?
Yes. Depositions before action must be done with leave of court. File
the verified petition in the court where the expected adverse party
resides.
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.
SEC 2. CONTENTS OF PETITION
CONTENTS OF PETITION
The petition shall be entitled in the name of the petitioner and shall
show:
1. That the petitioner expects to be a party to an action in a court of
the Philippines but is presently unable to bring it or caused it to be
brought
2. The subject matter of the expected action and his interest therein
3. Facts which he desires to be established by the proposed testimony
and his reasons for desiring to perpetuate it
4. The names or a description of the persons he expects will be
adverse parties and their addresses so far as known
5. The names and addresses of the persons to be examined and the
substance of the testimony which he expects to be examined and
the substance of the testimony which he expects to elicit from
each, and shall ask for an order authorizing the petitioner to take
the depositions of the persons to be examined named in the
petition for the purpose of perpetuating their testimony.
SEC 3. NOTICE AND SERVICE
NOTICE AND SERVICE
The petitioner shall serve a notice upon each person named in the
petition as an expected adverse party, together with a copy of the
petition, stating that the petitioner will apply to the court, at a time and
place named therein, for the order described in the petition.
At least twenty (20) days before the date of the hearing, the court shall
cause notice thereof to be served on the parties and prospective
deponents in the manner provided for service of summons.
Requirement of notice and service
The petitioner shall serve a notice upon each person named in the
petition as an expected adverse party, together with a copy of the
petition. The court will decide whether the deposition shall be by oral
examination or by written interrogatories
SEC 5. ORDER AND EXAMINATION
ORDER AND EXAMINATION
If the court is satisfied that the perpetuation of the testimony may
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
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
be taken upon oral examination or written interrogatories. The
depositions may be taken in accordance with Rule 23 before the hearing.
SEC 5. REFERENCE TO COURT
REFERENCE TO COURT
For the purpose of applying Rule 23 to depositions for perpetuating
testimony, each reference therein to the court in which the action is
pending shall be deemed to refer to the court in which the petition for
such deposition was filed. (5a, R134)
SEC 6. USE OF DEPOSITION
USE OF DEPOSITION
If a deposition to perpetuate testimony is taken under this Rule, or if,
although not so taken, it would be admissible in evidence, it may be
used in any action involving the same subject matter subsequently
brought in accordance with the provisions of sections 4 and 5 of Rule
23.
DEPOSITIONS PENDING APPEAL
SEC 7. DEPOSITIONS PENDING APPEAL
DEPOSITIONS PENDING APPEAL
If an appeal has been taken from a judgment of a court, including the
Court of Appeals in proper cases, or before the taking of an appeal if
the time therefor has not expired, the court in which the judgment was
rendered may allow the taking of depositions of witnesses to perpetuate
their testimony for in the event of further proceedings in the said court.
In such case the party who desires to perpetuate the testimony may
make a motion in the said court for leave to take the depositions, upon
the same notice and service thereof as if the action was pending therein.
The motion shall state (a) the names and addresses of the persons to
be examined and the substance of the testimony which he expects to
elicit from each, and (b) the reason for perpetuating their testimony.
If the court finds that the perpetuation of the testimony is proper to
avoid a failure or delay of justice, it may make an order allowing the
deposition to be taken, and thereupon the depositions may be taken
and used in the same manner and under the same conditions as are
prescribed in these Rules for depositions taken in pending actions.
Q. When is deposition pending appeal taken?
 During the pendency of an appeal.
 Even before appeal is filed, but, the period to appeal has not yet
expired.
RULE 25 – INTERROGATORIES TO PARTIES
SEC 1. INTERROGATORIES TO PARTIES, SERVICE THEREOF
INTERROGATORIES TO PARTIES; SERVICE THEREOF
Under the same conditions specified in section 1 of Rule 23, any party
desiring to elicit material and relevant facts from any adverse parties
shall file and serve upon the latter written interrogatories to be
answered by the party served or, if the party served is a public or private
corporation or a partnership or association, by any officer thereof
competent to testify in its behalf.
Interrogatories to Parties
This is just like a written interrogatory but only addressed to a party in
the case. This cannot be imposed upon any other person, unlike Rule
23 where it can be used to take depositions of any other person.
Q. How are interrogatories to parties done?
A. With leave of court – when the court has acquired jurisdiction of
the defendant but the defendant has not filed his answer
16 | U N I V E R S I T Y O F S A N C A R L O S
B. Without leave of court – when there is already an answer filed by
the defendant
SEC 2. ANSWER TO INTERROGATORIES
ANSWER TO INTERROGATORIES
The interrogatories shall be answered fully in writing and shall be signed
and sworn to by the person making them. The party upon whom the
interrogatories have been served shall file and serve a copy of the
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.
Q. How should answers to interrogatories be made?
A. Answer fully in writing
B. Signed and sworn by the person making them
C. File and serve a copy of the answers on the requesting party
within 15 days from service
Q. When should interrogatories be answered?
Within 15 days from service thereof, unless the courts on motion and
for good cause shown, extends or shortens the period.
SEC 3. OBJECTIONS TO INTERROGATORIES
OBJECTIONS TO INTERROGATORIES
Objections to any interrogatories may be presented to the court within
ten (10) days after service thereof, with notice as in case of a motion;
and answers shall be deferred until the objections are resolved, which
shall be at as early a time as is practicable.
Q. What should be the ground for objection?
That the questions are immaterial and irrelevant.
Q. When should objections be raised?
Within 10 days after service thereof.
SEC 4. NUMBER OF INTERROGATORIES
NUMBER OF INTERROGATORIES
No party may, without leave of court, serve more than one set of
interrogatories to be answered by the same party.
Q. How may sets of interrogatories may be filed?
Only one set. For the succeeding interrogatories, leave of court is
required.
SEC 5. SCOPE AND USE OF INTERROGATORIES
SCOPE AND USE OF INTERROGATORIES
Interrogatories may relate to any matters that can be inquired into under
section 2 of Rule 23, and the answers may be used for the same
purposes provided in section 4 of the same Rule.
Montie: The same scope and use as in Rule 23. (See page 11 of this reviewer)
SEC 6. EFFECT OF FAILLURE TO SERVE WRITTEN INTER
EFFECT OF FAILURE TO SERVE WRITTEN INTERROGATORIES.
Unless thereafter allowed by the court for good cause shown and to
prevent a failure of justice, a party not served with written
interrogatories may not be compelled by the adverse party to give
testimony in open court, or to give a deposition pending appeal.
Q. What is the effect if a party is not served with written
interrogatories?
He may not be compelled by the adverse party to give the testimony in
open court, or to give a deposition pending appeal.
Montie: This is intended by the rules to compel the lawyer to use the modes of
discovery. Thus, the rule as it stands now is –you cannot compel the adverse party
to take the witness stand if you did not avail of the deposition under Rule 25.
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RULE 26 – ADMISSION BY ADVERSE PARTY
SEC 1. REQUEST FOR ADMISSION
REQUEST FOR ADMISSION
At any time after issues have been joined, a party may file and serve
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
material and relevant document described in and exhibited with the
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
request unless copy have already been furnished.
Q. When may a party request for admission?
At any time after the issues have been joined (when there is already a
reply from the defendant)
Q. What is being admitted?
The genuineness of any material and relevant document
Leave of court is not necessary
This is because there is already an answer when you avail of this mode
of discovery.
SEC 2. IMPLIED ADMISSION
IMPLIED ADMISSION
Each of the matters of which an admission is requested shall be deemed
admitted unless, within a period designated in the request, which shall
not be less than fifteen (15) days after service thereof, or within such
further time as the court may allow on motion, the party to whom the
request is directed files and serves upon the party requesting the
admission a sworn statement either denying specifically the matters of
which an admission is requested or setting forth in detail the reasons
why he cannot truthfully either admit or deny those matters.
Objections to any request for admission shall be submitted to the court
by the party requested within the period for and prior to the filing of his
sworn statement as contemplated in the preceding paragraph and his
compliance therewith shall be deferred until such objections are
resolved, which resolution shall be made as early as practicable.
Q. When is the genuineness of the document deemed admitted?
GR: If the party requested fails to answer the request within 15 days
after service thereof.
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
XPN:
When there is already a denial in the pleading. (Then, answering the
admission request would be redundant)
Po v. CA
Plaintiff filed a case for collection of sum of money with attachment of
promissory note signed by the defendant. Defendant, in his answer, said
that the promissory note is not genuine. Before the start of the trial, the
plaintiff sent a letter to the defendant requesting the admission of
genuineness, the defendant did not anymore answer the letter.
Under Rule 26, the attached promissory note should have been admitted
as genuine. However, when a matter is already effectively denied in the
pleading, there is no need any more to ask it again under Rule 26. If
requested and not denied in this case, there is no implied admission.
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SEC 23. EFFECT OF ADMISSION
EFFECT OF 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
by him for any other purpose nor may the same be used against him in
any other proceeding.
TN: The admission is only good for the case. The admission cannot be
used in any other proceeding.
SEC 4. WITHDRAWAL
WITHDRAWAL
The court may allow the party making an admission under the Rule,
whether express or implied, to withdraw or amend it upon such terms
as may be just.
SEC 5. EFFECT OF FAILURE TO FILE AND SERVE REQUEST
EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR
ADMISSION
Unless otherwise allowed by the court for good cause shown and to
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
which are, or ought to be, within the personal knowledge of the latter,
shall not be permitted to present evidence on such facts.
Q. What is the effect if you failed to file and serve a request
for admission?
GR: You will not be permitted to present evidence on such facts.
XPNs:
1. If allowed by the court for good cause shown
2. If allowed by the court to prevent a failure of justice
Q. To whom should the request for admission be made?
Reboneria v. Court of Appeals
A request for admission must be addressed to the party and not to his
lawyer. So, if the request was sent to the lawyer of the adverse party
and the latter fails to answer, it is not deemed as an implied admission
because the request was not valid in the first place.
PSCFC Financing Corp v. CA
However, if the request for admission was properly sent to the party and
the latter requested his lawyer to answer it, the answer is valid. Under
the Rules, a client can always act through his lawyer and that he is
bound by the actuation of the latter.
RULE 27 – PRODUCTION OR INSPECTION OF DOCUMENTS
SEC 1. MOTION FOR PRODUCTION OR INSPECTION
MOTION FOR PRODUCTION OR INSPECTION, ORDER
Upon motion of any party showing good cause therefor, the court in
which an action is pending may:
(a) Order any party to produce and permit the inspection and copying
or photographing, by or on behalf of the moving party, of any
designated documents, papers, books, accounts, letters,
photographs, objects, not privileged, which constitute or contain
evidence material to any matter involved in the action and which
are in his possession, custody or control, or
(b) Order any party to permit entry upon designated land or other
property in his possession or control for the purpose of inspecting,
measuring, surveying, or photographing the property or any
designated relevant object or operation thereon. 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.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016
Q. How is it done?
A. Documents – Before the trial you can ask for the production of
the documents in clear copy so that you can have it photocopied
B. Things – Can refer to any type property, real or personal. Real
property is examined by ocular inspection
Requisites for a valid inspection of documents or things
(Real or Personal)
1. A motion for leave of court must be filed
2. The motion must show good cause for its grant
3. Notice of motion must be furnished to all parties
4. The motion must sufficiently describe the documents or things to
be produced or examined
5. The document or things to be examined must contain evidence
material to the pending action
6. The documents or thing to be examined must not be privileged
7. Documents or things to be examined must be in the possession of
the adverse party may at least be under his control
RULE 28–PHYSICAL & MENTAL EXAMINATION OF PERSONS
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
This rule is applicable only to the living. A cadaver is considered a thing
and thus Rule 27 applies
SEC 1. WHEN EXAMINATION MAY BE ORDERD
WHEN EXAMINATION MAY BE ORDERED
In an action in which the mental or physical condition of a party is in
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.
Q. When may an examination be ordered?
When the mental or physical condition of a party is in controversy. This
is however discretionary upon the court.
SEC 2. ORDER FOR EXAMINATION
ORDER FOR EXAMINATION
The order for examination may be made only on motion for good cause
shown and upon notice to the party to be examined and to all other
parties, and shall specify the time, place, manner, conditions and scope
of the examination and the person or persons by whom it is to be made.
Q. When may an examination be ordered?
 Only upon motion for good cause show and
 Upon notice to the party to be examined and to all other parties
 Notice shall specify the time, place, manner, conditions and scope
of the examination and the person or persons by who it is to be
made
SEC 3. REPORT OF FINDINGS
REPORT OF FINDINGS
If requested by the party examined, the party causing the examination
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
request and delivery, the party causing the examination to be made shall
be entitled upon request to receive from the party examined a like report
of any examination, previously or thereafter made, of the same mental
or physical condition.
If the party examined refuses to deliver such report, the court on motion
and notice may make an order requiring delivery on such terms as are
just, and if a physician fails or refuses to make such a report the court
may exclude his testimony if offered at the trial.
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Q. May a doctor refuse to make a report of the examination?
Yes, by reason of doctor-patient relationship since it is privileged
communication. In which case, the court may exclude the doctor’s
testimony if offered at the trial.
Remedy: The court will require the patient to order his doctor to give
the report.
SEC 4. WAIVER OF PRIVILEGE
WAIVER OF PRIVILEGE
By requesting and obtaining a report of the examination so ordered or
by taking the deposition of the examiner, the party examined waives
any privilege he may have in that action or any other involving the same
controversy, regarding the testimony of every other person who has
examined or may thereafter examine him in respect of the same mental
or physical examination.
Application
The plaintiff asks the court to examine the mental condition of the
defendant. The court grants and the defendant is examined by the
physician availed by the plaintiff. The physician sends the report to the
plaintiff (because they were the ones who hired the physician).
Defendant can request and obtain the report which the plaintiff has in
his possession. Consequently, if the defendant had any previous
examinations by doctors about his mental condition, the plaintiff can
also request and obtain these documents. The defendant has deemed
to have waived the privilege of confidentiality he had with his previous
physicians.
RULE 29 – REFUSAL TO COMPLY W/ MODES OF DISCOVERY
SEC 1. REFUSAL TO ANSWER
REFUSAL TO ANSWER
If a party or other deponent refuses to answer any question upon oral
examination, the examination may be completed on other matters or
adjourned as the proponent of the question may prefer. The proponent
may thereafter apply to the proper court of the place where the
deposition is being taken, for an order to compel an answer. The same
procedure may be availed of when a party or a witness refuses to answer
any interrogatory submitted under Rules 23 or 25.
If the application is granted, the court shall require the refusing party or
deponent to answer the question or interrogatory and if it also finds that
the refusal to answer was without substantial justification, it may require
the refusing party or deponent or the counsel advising the refusal, or
both of them, to pay the proponent the amount of the reasonable
expenses incurred in obtaining the order, including attorney's fees.
If the application is denied and the court finds that it was filed without
substantial justification, the court may require the proponent or the
counsel advising the filing of the application, or both of them, to pay to
the refusing party or deponent the amount of the reasonable expenses
incurred in opposing the application, including attorney's fees.
Refusal to Answer
 Movant of deposition upon oral examination may proceed to ask
questions on other matters
 Movant may ask from the court for an order to compel from the
deponent to answer
 If the court finds the refusal to answer unreasonable, it may order
deponent and counsel to pay reasonable expenses incurred by the
proponent in obtaining the order
 If the court finds the motion unjustifiable, it may order the
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.
CIVIL PROCEDURE l Dean Monteclar l For the exclusive use of EH – 407 A.Y. 2015-2016

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
question after being directed to do so by the court of the place in which
the deposition is being taken, the refusal may be considered a contempt
of that court.
SEC 3. OTHER CONSEQUENCES
OTHER CONSEQUENCES
If any party or an officer or managing agent of a party refuses to obey
an order made under section 1 of this Rule requiring him to answer
designated questions, or an order under Rule 27 to produce any
document or other thing for inspection, copying, or photographing or to
permit it to be done, or to permit entry upon land or other property or
an order made under Rule 28 requiring him to submit to a physical or
mental examination, the court may make such orders in regard to the
refusal as are just, and among others the following:
If a party or an officer or managing agent of a party wilfully fails to
appear before the officer who is to take his deposition, after being
served with a proper notice, or fails to serve answers to interrogatories
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
of that party, or dismiss the action or proceeding or any part thereof, or
enter a judgment by default against that party, and in its discretion,
order him to pay reasonable expenses incurred by the other, including
attorney's fees.
SEC 6. EXPENSES AGAINST THE REPUBLIC OF THE PHILS
EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES
Expenses and attorney's fees are not to be imposed upon the Republic
of the Philippines under this Rule.

(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.

19 | U N I V E R S I T Y O F S A N C A R L O S