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SUMMONS Clerk of court issues o Filing of complaint o Legal fees Not discretionary but mandatory Can be served any

y time (ministerial) If summons ineffective o Do not acquire jurisdiction if personam o Period to file Motion to Dismiss does not commence to run If action is in personam, required to acquire jurisdiction If in rem or quasi in rem, not required to acquire jurisdiction, only to satisfy due process Substitution new summons not required

State that summons were served to: person if suitable age and discretion residing in address; or in charge of office or regular place of business Reasonable time Longer than prompt Several attempts: at least three times, at two different dates If substituted service of summons did not outline several attempts can still be VALID if sheriff subsequently explains in court

If based on strict instruction to security guard, sheriff cannot serve summons; owner of house must bear consequences summons properly served SERVICE OF SUMMONS BY PUBLICATION motion in writing supported by affidavit available only to in rem/quasi in rem to acquire jurisdiction (not in personam) If non-resident and in an action in personam -> only service in person allowed (take note of Rianos commentary) If action in persona, summons by publication not allowed it is violative of DUE PROCESS What to do? Convert to in rem /quasi in rem How? Attach properties available by leave of court a. defendant unknown b. whereabouts unknown but definitely in the Philippines (cannot be ascertained by diligent inquiry, ie. check with SEC) c. non-resident, not found in the Philippines, action in rem/quasi in rem purpose is not to acquire jurisdiction over his person but for due process c.1 personal status c.2 lien/interest over property within Philippines c.3 relief demanded exclude c.4 attachment of property in Philippines Extraterritorial Service MODES: i. Service in person, ii. Publication and registered mail to last known address, iii. Other manner court deems sufficient (ie. regular mail) If for recovery of land and damages, only action for land will prosper unless he answers he then voluntarily submits his person to jurisdiction of court Period for defendant to file answer at least 60 days Resident temporarily outside the Phils. (exc. Includes in personam) Mere superfluity because substituted service may already be applied

C.

Who may serve? a. Sheriff b. Deputy Sheriff c. Other proper court officer d. Those authorized by court order SHERIFFS RETURN WITHIN 5 DAYS to : Plaintiffs counsel : Clerk of court Accompanied by proof of service (manner, place, date, papers serve, person who received) In writing Be sworn to when made by person other than sheriff/deputy a. Proof of service by publication proved by affidavit copy of publication attached st nd ALIAS Summons if 1 summons was lost; 2 summons SERVICE IN PERSON wherever, whenever Handing a copy Tender it to him If outside country Substituted service and, Summons by publication SUBSTITUTED SERVICE Person of suitable age and discretion residing in defendants residence (relation of confidence) Competent person in charge of office or regular place of business (managing, need not be specifically authorized) b. Proof of service Indicate impossibility of service within a reasonable time for justifiable causes Specify efforts exerted

A.

B.

d.

SERVICE OF SUMMONS IN EXCEPTIONAL CASES 1. Upon entity without juridical entity

Mhealler Notes
Civil Procedure Rules 14 33

2. 3.

4.

a. Upon anyone of them b. Person in charge of office/place of business Prisoner confined a. By officer having management of such jail/institution deemed deputized as special sheriff Minors and incompetents a. Upon him personally and legal guardian/ guardian ad litem appointment applied for by plaintiff b. If minor, father or mother Domestic Private Juridical entity (by exclusive enumeration) a. President b. Managing partner c. General manager d. Coroporate secretary e. Treasurer f. In-house counsel However defense can be raised that it be based on reality, that he was aware (speedy justice prevail over technicality) Branch Manger improper service results to lack of jurisdiction; liberal construction cannot be invoked Foreign Private Juridical Entity doing business in the Phils. a. Resident agent (15 days to answer) b. If none (30 days to answer) : government official designated by law; or any of its officers/agents within the Phils. If Non-Resident Foreign Company not doing business in Phils. courts can never acquire jurisdiction except if the voluntarily submit/agree upon If corp. dissolved o Can still sue; there is still period for winding-up o Serve summons to last set of officers o If with VTA -> serve to trustee not the President Doing business in the Phils. Continuity of conduct and intention to establish a continuous business; not single isolated or casual EXCEPTION: single act/transaction is of such character to indicate purpose to do other business in Phils., or make Phils. a base of operations If NRFC NBD in Phils. agrees to be sued apply rules on extraterritorial service Public Corp./Republic of the Phils. a. RP Solicitor General b. Exec. Head of province, city, municipality and other public corp. c. Other officers as law/court may direct

Pleading Directly related to cause of action

Motion Relief/defense other than main cause of action or defense Eg. 1. Motion for judgment to the Demurrer of Evidence 2. Motion for judgment on the pleadings 3. Motion for summary judgment

5.

Requisites of a Valid Motion A. In writing EXCEPT: made in open court; or in the course of hearing/trial B. Contents Relief sought and grounds based If required to prove facts as by rules supporting affidavits C. Set for HEARING by applicant EXCEPT: not a litigated claim i.e. extension of time to file answer, set case for pretrial, defense as indigent Notice to adverse party 3 days before hearing, otherwise fatally defective/court refuse to take action. EXCEPT: court order otherwise for good cause D. Notice of Hearing (time and date) Hearing not later than 10 days form filing To all parties and not the clerk of court E. Proof of Service (cannot be filed ex parte) EXCEPT: not litigated/controversial motion Effect if requirements not complied useless piece of paper, no judicial cognizance, does not stop running of period of filing requisite pleading Motion day Friday afternoon and if not a working day, next day afternoon OMNIBUS MOTION RULE All objections then available not filed deemed waived Except: (may be done by court moto proprio) a. jurisdiction over subject matter b. litis pendentia c. res judicata d. prescription Motion for leave to file pleading/motion accompanied by pleading/motion to be admitted As to form for motions, apply rules on pleadings MOTION TO DISMISS Deemed as hypothetical admission of material allegations (sufficiently pleaded) but not as to conclusions Where not MTD is filed, grounds may be availed as affirmative defenses in the answer o Court (by discretion) may conduct preliminary hearing

6.

Voluntary Appearance = Service of Summons (ie. motion for extension of time, motion for BP) MTD for lack of jurisdiction together with other grounds not a voluntary appearance MOTIONS Application for relief other than by pleading

Mhealler Notes
Civil Procedure Rules 14 33

WHEN TO FILE MTD Within time for making answer but before filing it (within 15 days) from receipt of summons and complaint GROUNDS 1. No jurisdiction over person of defendant Absence of summons/improper service May be waived by voluntary acceptance, or when it came to you attention (reality) 2. LINGER Case: fault of sheriff, plaintiff should not suffer, issue alias summons 6. No Jurisdiction over subject matter Wrong court filed. Ie. RTC instead of MTC and vice versa PRINCIPLES: a. Determine the allegations in complaint (not allegations of defendant). [EXCEPT: tenancy relationship and there was reception of evidence] b. Hypothetical admission of allegations in complaint c. Court retains jurisdiction until case is terminated. [EXCEPT: new statute CURATIVE in character] 3. 4. Claim for moral damages transferred from RTC to labor arbiter d. Can be raised anytime. [EXCEPT: equitable doctrine of estoppel by laches] Venue improperly laid If MTD denied resort to PROHIBITION Plaintiff not legal capacity to sue Does not possess qualification (minor) Does not have character/representation (not really the guardian)

c. d.

Founded on same facts Judgment regardless who will be successful will result to res judicata st nd 1 action annulment of mortgage, 2 action foreclosure not LP st nd 1 recovery of land, 2 Quieting of title - LP Action becomes pending already the moment it is FILED, not when summons is served o In fact, service of summons not required before lis pendens would apply

LEGAL CAPACITY Disability of plaintiff

LEGAL PERSONALITY Not a real party-in-interest (in his name) Ie. agent not acting in behalf of principal States no cause of action

5.

Lis Pendens/Litis Pendentia Pending litigation of same parties for the same cause Guilty of splitting action Litis Pendentia Forum Shopping no difference as to cause but as to effect 1 case remains, no contempt of court both dismissed, disciplinary action of lawyer and st Which case remains? GR 1 case remains (before in contempt of court time is the better law) EXCEPT: more appropriate action and better position to server interest of justice Action for declaratory relief v. unlawful detainer UD more appropriate As to elements a. Identity of parties, righ/causes of action, relief sought b. Identity of rights asserted and relief prayed for

Res Judicata or Prescription Public policy and necessity (an end to litigations) and hardship of being vexed twice for same cause CONCEPTS: bar by prior judgment and conclusiveness of judgment (to parties concerned) ELEMENTS: a. Final judgment b. Proper jurisdiction over subject matter and person c. Judgment on merits d. Identity of parties, subject matter, causes of action Applicable to quasi judicial proceeding but not to preliminary inviestigation (crim pro) 7. Pleading asserting claim staes NO CAUSE OF ACTION Even if one element is missing (RODD) Based on allegations (there is hypothetical admission) Different from LACK of cause of action which is evident during course of trial and not based on complaint TAN v. CA (Kiat case) failure to state cause of action not being the owner of the subject property/no right thereto. GENERAL RULE: Base allegation in complaint EXCEPTION: where a pending hearing was held and documentary evidence was presented 8. Claim has been paid, waived, abandoned or extinguished (PaloRecomConNov) `includes laches 9. Unenforceable under statute of frauds 10. Condition precedent not complied a. Failure to exhaust admin. Remedies b. Failure to undergo Bgy. Conciliation c. Failure to allege earnest efforts between family member towards compromise o Nephew not included o Earnest efforts nor required if party mixed with a stranger / not purely family members Arguments questions of law Evidence questions of fact Evidence in hearing of MTD automatically post of evidence in trial GENERAL RULE: on hearing of MTD, Defendant allowed to present evidence EXCEPTIONS: a. lack of jurisdiction over subject matter, b. asserts claim states no cause of action (deem hypothetically admitting allegations in complaint Resolution of Motion Granted (action is dismissed)

Identity of parties, right/causes of action, relief sought

Mhealler Notes
Civil Procedure Rules 14 33

Denial (proceed to trial) Pleading amended (polite way of denying MTD) REMEMBER: when no answer filed yet, pleadings can be amended as a matter of right!

NOTE: if MTD granted but before it becomes final and executor, plaintiff can still amend complaint as a matter of right since there is still no responsive pleading If grounds not indubitable, cannot defer resolution -> court must ACT on it If MTD denied not appealable since merely interlocutory (certiorari allowed Grave abuse of discretion) If MTD granted WITHOUT prejudice not appealable; can refile; can avail of Petition for Certiorari If MTD granted WITH prejudice appealable since it is already final a. Res judicata b. Prescription c. Extinguishment of obligation d. Violation of statute of frauds/unenforceable Dismissal of complaint without prejudice to prosecution of counterclaim in: Same Action manifest preference within 15 days Separate Action NOTE: Advantage of answer of MTD -> amendment not anymore allowed as a matter of right DISMISSAL OF ACTIONS rd Dismiss his won complaint (applicable to CC, Cr.C, 3 PC) When done? As a matter of right before SERVICE (not filing) of (a) ANSWER or (b) Motion for summary judgment How? File Notice of Dismissal, then court issue an order confirming (not discretionary) o Dismissal is not automatic respect to court Dismissal occurs as of filing Notice of Dismissal, and not as of the court order Dismissal with Prejudice a. Expressly stated/impliedly (stated in the reasons) b. Two Dismissal Rule (deemed adjudication based on merits) Twice dismissed action Based in or including the same claim In a court of competent jurisdiction Dismissal becomes final and executor after 15 days, hence if you change you mind you can ask court to set aside the order of dismissal and revive the case If done after service and MSJ, must be done with Leave of Court Dismissal Due to Fault of Plaintiff For no justifiable reason a. Plaintiff fails to appear on date of presentation of evidence in chief b. Plaintiff fails to prosecute action within reasonable length of time( ie. postpones indefinitely, not set for pretrial, defendant cannot be summoned)

c. Plaintiff fails to comply with rules of court/court order (ie. fails to amend) EFFECT: - CC stays - Adjudication upon merits (court discretion) With prejudice; cannot be re-filed Unless court orders otherwise Motu Proprio Dismissal By Court a. Plaintiffs fault b. 4 non-waivable defenses c. Summary roles RBP v. Medina for res judicata to apply, jurisdiction over subject matter and person required. Since defendant not served with summons then not res judicata, dismissal without prejudice PRE-TRIAL Mandatory

When to file? Within 5 days after last pleading served and filed (last pleading reply filed/exp. of period) Whos duty? Plaintiff ex parte set for pre-trial Nature and Purpose a. Amicable settlemed/ADR b. Simplification of issues c. Amendments to pleading nd 2 pre-trial not mandatory exc. If party agree otherwise d. Stipulation of fact (bind the parties) e. Limit number of witness f. Preliminary reference to commissioner g. Judgment, summary judgment or dismissal h. Suspension / held in absence (possibility of compromise) i. Other matters as to aid in prompt disposition Purpose is to end case immediately o Simplification, abbreviation, expedition, and dispensation of trial (SAED)

Notice of Pre-trial Counsel (notice to counsel, notice to party) Party if without counsel Still required even if it was counsel who suggested the date ORAL notice allowed (ie. present during the postponement and he agreed) Apearance Mandatory excused only if: Valid case shown (got sick) Representative appears fully authorized to enter into amicable settlement, submit to ADR, and enter into stipulation (SPA) -> clothed with pre-trial authority

Mhealler Notes
Civil Procedure Rules 14 33

If corporation: BOD not chairman If representative, must be authorized by board resolution Effect of failure to appear in pre-trial or failure to file pre-trial brief As to plaintiff As to defendant Dismissal wont prejudice Plaintiff to present evidence ex parte Court render judgment on basis thereof Remedy: appeal no certiorari Remedy: MFR, an answer already filed or certiorari (GAD) but not appeal (interlocutory) PRE-TRIAL BRIEF Filed and served to be revived at least 3 days before pre-trial Parties bound by their representation and statements in PTB (JUDICIAL ADMISSIONS) CONTENTS: a. Willingness to compromise/ADR b. Summary of admitted facts c. Issues d. Documents/exhibits and their purpose e. Manifestation: (a) modes of discover, (b) reference to comm. f. Number and names of witnesses and substance of testimonies Importance of identification and making of evidence during pre-trial because if not offered then it cannot be offered during trial unless allowed by court for good cause shown No termination of pre-trial for failure to settle During pre-tria l: Judge asks questions or comments are directed to him : binding and conclusive upon parties

Bgy. of defendant (serve) or bgy. of school or workplace (if dispute arose there) or bgy. where real property is located o Condition precedent FATAL o Dismissible; however not jurisdictional Ground is prematurity of action and failure to state cause of action Applicable if: Natural person (not juridical) and; Same city/municipality Different city but adjacent Defendants actual residence Physical residence and membership in Bgy. (conciliation mechanism) BGY. Captain (or Lupon Tagapamayapa) issue Certificate to File an Action Bgy. no power to make decisions; comes from parties If some but not all (Mixed) reside in the same city/municipality Bgy. Conciliation not required INTERVENTION rd 3 person not a party to the case permitted by court to make himself a party to the case o to protect/preserve a right/interest ancilliary and supplemental not compulsory only optimal and permissive Legal Grounds for Intervention a. Legal interest on matter under litigation b. Legal interest on success of either parties Complaint-in-intervention assert claim against either or all Answer-in-intervention unites with defendant c. Legal interest against both (complaint-in-intervention_ d. So situated to be adversely affected by a distribution or other disposition of property in custody of court/court officer LEGAL INTEREST actual, material, direct, immediate (AMDI) not contingent. (ie. if parent deceased, children will have legal interest) GENERAL RULE: Intervention not a matter of right (needs leave of court) EXCEPTIONS: a) interventioner is an indispensable party b) class suit When to file Before rendition of Judgment How? Motion to intervene + pleading-in-intervention and served to original partiesand show in motion that you have legal interest Answer to Complaint-in-intervention 15 days from notice admitting the same o If amended 10 (not a M of R)

PRE-TRIAL ORDER Control subsequent course of action unless modified before trial to prevent manifest injustice Issued within 10 days after termination of pre-trial Matters taken, action taken, amendments allowed and agreements or admission made (define and limit issues) PTO supersedes pleading (complaint/answer) Even if an issue was not raised in a pre-trial order and no one objected, it can be tried and later PTO can be amended to confer therewith

Preliminary Conference under Revised Rules on Summary Procedure (PC) 1. PC held not later than 30 days after last pleading 2. If plaintiff absent, complaint dismissed, judgment on counterclaim 3. Within 5 days from end of conference, issue order

KATARUNGANG PAMBARANGAY Barangay conciliation (possibility of amicable settlement)

Mhealler Notes
Civil Procedure Rules 14 33

15 (M of R) If main action dismissed Intervention may or may not be dismissed INTERVENTION TRANSFEREE PENDENTE LITE Successor in intereset No need to intervene/already a party In no better position than the vendor in whose shoes he know stands

Witness fees and kilometrage must be tendered; if on behalf of Rep. of Phils. no such tender With reasonable time to prepare and travel Reasonable cost of production if SDT If present in court, may be required to testify as if served with subpoena

Stranger

CALENDAR OF CASES Clerk of court under direct supervision of Judge Preference to Habeas Corpus, Election case, special civil action and those required by law Assignment of cases done by ragger in open session with adequate notice SUBPOENA (Hearing, trial, any investigation by competent authority) Subpoena Ad Testificandum (SAT) Attend to testify/taking of deposition Subpoena Duces Tecum (SDT) Bring things under your control

To Compel Attendance/failure to attend (Recalcitrant witness) Upon proof of service, court may issue warrant of arrest through sheriff/deputy and such costs paid by witness if failure to answer proven to be willful and without just cause Contempt of court/if not a court, punished in accordance with applicable law or rule o 2 EXCEPTION a) More than 100km from place to testify b) Detention prisoner and no permission of court in which his case is pending SUBPOENA Witness Bring documents Contempt in court/warrant Both criminal and civil case 100 km limitation SUMMONS Defendant File responding pleading Judgment in default Civil only No distance limitation

1) 2)

WHO ISSUES a) Court before whom witness required to attend b) Court of place where deposition is to be taken c) Officer/body authorized by law investigations d) Any justice of CA/SC If upon prisoner, judge examine carefully if made for a valid purpose If prisoner sentenced to death, reclusion perpetua or life imprisonment and confined in penal institution, must be authorized by SC Forms and Context Name of court and title of action/investigation Contain reasonable description of document MOTION TO QUASH SUBPOENA 1) SAT If witness not bound (more than 100km) Withness fees and kilometrage not tendered 2) SDT At/before time specified If subpoena unreasonable and oppressive (not specific) Relevancy does not appear Fails to advance reasonable cost Witness fees and kilometrage not tendered SERVICE Same as service in person and substituted service

COMPUTATION OF TIME Exclude the first day and include the last Day of act that caused the interruption shall be excluded in the computation of the period; start to run on day after notice MODES OF DISCOVERY DEPOSITIONS PENDING ACTION Purpose of modes of discovery: Narrow and clarify basic issues Ascertain the facts Obtain fullest possible knowledge of the issues and facts BILL OF PARTICULARS Clarify vague statements of ultimate facts MODES OF DISCOVERY Reveal evidence and evidentiary facts

DEPOSITION Allows cross-examination

AFFIDAVIT Ex parte

When: a) Upon leave of court, after jurisdiction has been obtained, but answer not served b) Without leave of court if answer has been served If deponent is a person confined in prison always with leave of court

Mhealler Notes
Civil Procedure Rules 14 33

Answer ex abundante cautela is still an answer (no need for leave of court) Attendance of witness can be compelled by subpoena (for taking of his deposition) o Subpoena issue by court where deposition is to be taken; not really the court where case is pending

DEPOSITION Depositions may be taken ANYTIME against ANYONE Deposition is a fishing expedition SCOPE OF DEPOSITINO TAKING Anything Limitation not: o Privileged communication o Must be relevant to subject of pending action o Not against court order (to protect parties and deponent) Deposition can be used during Trial Supporting/opposing a motion (ie. MSJ/upon hearing a motion) Upon hearing of interlocutory proceeding (prelim. Injunction) Against whom used (bound by deposition) Party present (during taking of depo) Party represented (during taking of depo) Not a/b but duly notified of schedule Uses a) To contradict/impeach testimony of deponent as witness (destroy credibility [prior inconsistent statement]) Deposition cannot substitute oral testimony (GENERAL RULE) b) If deponent is party (or its officer, director, managing agent) used for any purpose Can be used as EVIDENCE and to IMPEACH GENERAL RULE: if witness follow (a), only to impeach EXCEPTION: [meaning it can be used as evidence] a) If dead b) Resides at a distance more than 100km/out of the Phils (unless absence was procured by party offering the deposition) c) Unable to attend because of AGE, SICKNESS, INFIRMITY or IMPRISONMENT d) Unable to procure witness attendance by subp oena (witness not found) e) Exceptional circumstances in the interest of justice If only a part of deposition offered, adverse party may require him to introduce all that is relevant Substitution of parties no effect/no need of repeating the whole process Deposition officer cannot rule but objection is recorded to be ruled upon by judge during trial By taking deposition, not automatically deemed as witness o EXCEPT: if deposition offered in court (ie. dead, more than 100km) EXC to EXC: a) offered to impeach; b) deposition of opponent Deposition can always be REBUTTED

Before whom taken If within Philippines o Any judge o Notary public o Any person authorized to administer with stipulation in writing (sec. 14) If outside Philippines o Sec. of embassy/legation, consul general, consul, vice consul/consular agent (leave of court required) o Person appointed by commission/letters rogatory When necessary/convenient, on application and notice, just and appropriate terms o Sec. 14 Comission officers designated by name/descriptive title/person authorize by court order Letters Rogatory addressed to appropriate judicial authority/letter request to foreign court for deposition to be taken in due course of law Letters Rogatory applied for and issued only after a commission has been returned unexecuted DISQUALIFICATION BY INTEREST of Deposition Officer th a) Relative within 6 degree of consanguinity of affinity b) Employee or counsel c) Employee of counsel d) Financially interested in the action Before deposition taken, there should be NOTICE to adverse party COURT ORDERS TO PROTECT PARTIES & DEPONENTS (upon motion) a) Before deposition making (court which case is pending) Deposition not to be taken Only at some designated place Only on written interrogatories Contain matters not inquired into No other person present Deposition sealed and open only in court Secrets/research not be disclosed Simultaneously file documents May order which justice requires (avoid annoyance, embarrassment or oppression) b) During deposition taking (these must be showing of bad faith) Court where case is pending/RTC where deposition taken Cease deposition taking Limit scope and manner Suspension of proceeding Pay reasonable costs/expenses Must be under oath, stenographically taken, unless agreed otherwise and objections recorded Evidence objected shall be taken subject to objections (deposition officer cannot rule on objections) Answers to deposition no objected to cannot be objected during trial unless based on new ground Transcriptions submitted to witness Signed by witness except if ill or waived or cannot be found or refused to sign Officer shall sign it and state reasons

Mhealler Notes
Civil Procedure Rules 14 33

Deposition can be challenge by MOTION to SUPPRESS Officer certifies and files Failure to attend :Give notice of filing and furnish copies upon payment of reasonable fees :Party giving notice (PGN) : Witnessbecaus no subpoena was served Court may order PGN to pay reasonable expenses and attorneys fees

Written Interrogatory
(on personal confrontation) Within 3 days

Within 10 days

Cross - interrogatory
Within 5 days

Answers required to be filed and served court takes judicial notice If already denied in answer (pleading) no need to deny again Limitation of effectivity of admission only for the purpose of pending action o Cannot be used in any other case With leave of court, party may withdraw or amend admissions Effect of failure to file and serve request for admission o Not permitted to present evidence on such facts o Unless otherwise allowed by court for good cause or to prevent failure of justice Request for admission must be directed to PARTY (dili sa lawyer) If directed to party, with valid authorization can be delegated to lawyer PRODUCTION/INSPECTION OF DOCUMENTS OR THINGS Needs leave of court a. to produce and permit inspection and copying of documents (not privileged) b. permit entry upon land/property (in the possession/under control of adverse party) when action already pending limited to PARTIES notice must be given to all parties sufficiently describe document/thing which must contain material evidence

Re cross interrogatory

Redirect interrogatory

Effects of errors and irregularities usually waived if not promptly objected As to manner of preparation waived unless motion to suppress deposition is made DEPOSITION BEFORE ACTION/PENDING APPEAL Perpetuation of testimony to prevent failure/delay of justice Verified petition in court of place of expected adverse partys residence Notice at least 20 days before date of hearing

INTERROGATORIES TO PARTIES Direct written prepositions only to adverse parties No deposition officer Leave of court not necessary in answer already served (same rule as deposotion) Answer to Interrogatory fully in writing signed and sworn within 15 days after service Objections presented to court within 10 days with notice and answering is deferred Only 1 set of interrogatory except with leave of court Scope related and not privileged If party not served with written interrogatory; he may not be compelled to give testimony in open court or give deposition pending appeal Adverse party cannot be called to witness stand if written interrogatory not served

ADMISSION BY ADVERSE PARTY Request for admission / yes or no questions only (WON you admit) o Does not pertain to actionable documents Bound to asnwer within 15 days under oath otherwise deemed admitted o Specific denial or set forth detail why he cannot admit/deny WHEN: after issues have been joined (meaning there is already an answer) o Leave of court not requied Objections filed within 15 days, prior to answer/sworn statement o EFFECT: compliance deferred

PRIVILEGED COMMUNICATIONS a. husband wife h. trade secretes b. atty. client i. tax census return info c. physician patient j. bank deposits d. priest penitent e. public officers public interest f. editors source g. voters vote PHYSICAL AND MENTAL EXAMINATION OF PERSON Requisites: physical/mental condition must be a subject of contreversy of the action motion showing good cause must be filed (with leave of court) notice of motion must be given to party to be examined at to all other parties (ie. to det. Psychological incapacity, impotency, insanity or physical disability If person to be examined requests fore reports of the examination or deposition of examiner, this will amount to a WAIVER meaning he may be requested in turn to provide all reports of examination on him pertaining to same mental/physical examination Effect of refusal to deliver such report (after he waived his privilege) not anymore a privileged communication unles under physician patient relationship the court on motion and on notice may make an order requiring delivery on such terms as are just if physician fails/refuses to make such report, the court may exclude his testimony if offered at the trial

Mhealler Notes
Civil Procedure Rules 14 33

SUMMARY: WHETHER LEAVE OF COURT REQUIRED Deposition Pending Action Deposition appeal before action/pending No answer served yet Answer Served Already at least 20 days before hearing No answer served yet Answer served already when issues are joined, answers already filed and served Not required Production or inspection documents or things of when action already pending action already pending Required Required Required Not Required Required Required Not required

TRIAL Notice of Trial at least 5 days before trial (entered in trial calendar) by clerk of court Purpose of Trial to resolve an issue (from production of evidence to closing arguments) Hearing > Trial; having included pre-trial and determination of granting/denying a motion

Interrogatories Request for admission

Physical and Mentl exam of persons

When trial not necessary a. Based on pleadings NO ISSUE; judgment on the pleadings b. No genuine issue based on papers submitted SUMMARY judgment c. Compromise agreement d. Dismissal with prejudice of complainant e. Rules on summary procedure f. Agreement in writing on stipulation of facts judgment on facts agreed upon o If some facts agreed and some disputed; trial on disputed facts only GENERAL RULE: Day to day adjor nment and at any stated time and not longer than one month per adjournment nor more than 3 months in all EXCEPTION: authorized in writing by court administration POSTPONEMENT OF TRIAL (2 Grounds only) based on sound discretion of court A. Absence of evidence Requisites (shown in affidavit) : materiality/relevance of evidence : due diligence has been used to procure it Except: if adverse party admits facts to be given in evidence even if the objects/reserves right to admissibility (meaning trial shall not be postponed) B. Illness of party/counsel Requisites :presence is indispensable : illness of such character as to render non-attendance excusable (shown in affidavit/sworn certificate) Even if not verified or without medical certificate, motion for postponement is stil granted if claim is meritorious (ie. sudden unexpected causes or recent accident) ORDER OF TRIAL (based on Sec. 5) PLAINTIFF adduce evidence-in-chief DEFENDANT adduce evidence-in-chief rd 3 PARTY defendant adduce evidence-in-chief th 4 PARTY defendant adduce evidence-in-chief DEFENDANT in a counterclaim/crossclaim adduce evidence-in-chief Adduce REBUTTING evidence only (except for good reasons and in furtherance of justice evidence-in-chief may be allowed) a. Newly discovered evidence b. Omitted thru inadvertence or mistake c. Purpose is to correct previous offered evidence d. Additional evidence is material and not merely cumulative Upon admission of evidence , deemed submitted for decision (except memoranda/further pleading required by court)

REFUSAL TO COMPLY WITH MODES OF DISCOVERY DEPOSITION Refusal to answer oral examination/interrogary o Upon preference of proponent Complete on other matters of examination Adjourn examination o Proponent apply for ORDER TO COMPEL an ANSWER If granted, require adverse party /deponent to answer question/interrogatory and if without substantial justification pay reasonable expense in attaining the orde r (incl. attorneys fees) If denied, and without subst. justification, proponent pays to the refusing party Refusal to sworn after being directed by court o Contempt of court Refusal to answer after being directed by court o Contempt of court Failure to attend on deposition or serve asnwers on interrogation after being served with proper notice o The court upon motion and notice may: Strike out all/part of pleading Dismiss action/proceeding/any part thereof Enter judgment in default Order to pay reasonable expenses Even if party refused to answer interrogatory when asked to do so, it is DISCRETIONARY upon trial court judge to apply sanctions allowed by law, SC will uphold TC judge decision unles there is presence of GAD. (apply permanent and overriding interest of justice) Moeds of discover not contemplated to be ultimate causes of injustice Modes of discovery are intended to be CUMULATIVE and not alernative/mutually exclusive NOTE: Instances when judgment by default allowed even if defendant already filed an answer: 1) Failure to appear at pre-trial conference 2) Failure to file pre-trial brief 3) Failure to cooperate in the mode of discovery

Mhealler Notes
Civil Procedure Rules 14 33

Evidence-in-chief Main evidence Evidence to prove major cause of action/defense Rebuttal evidence Evidence to dispute side of other party NOTE: Relative order of presentation of evidence determined by court if several defendants PURPOSE OF ORDER: to avoid injurious surprises and annoying delays

Civil and criminal action involving the same question of fact/law and pending before the same court may be consolidated (permissive not mandatory) o 2 different criteria applied CIVIL CASE preponderance of evidence CRIMINAL CASE proof beyond reasonable doubt rd Severance separate trial of any claim, crossclaim, counterclaim, 3 party complaint or of any separate issue o GROUND in furtherance of convenience and to avoid prejudice TRIAL BY COMISSIONER A commissioner possesses technical expertise (includes referee, auditor and examiner)

Trial limited to issues stated in Pre-trial order Pre-trial order prevails over pleadings Defendant can present evidence first especially when plaintiff has nothing to prove anymore (somewhat similar to Trial in Reverse in Criminal Procedure)

AGREED STATEMENT OF FACTS .In writing and conclusive upon parties Facts now submitted for judgment without introduction of evidence If not all agreed upon, trial on disputed facts Statement of judgme made of record in stenographic notes Suspension of actions (governed by civil code) o GROUNDS Willingness of possible compromise expressed by one or both parties One of the parties before commencement of actions or proceedings offered to discuss a possible compromise but other party refused the offer o If parties cannot settle, proceed with the trial. DO NOT dismiss the4 case.

HOW DONE a. Reference by CONSENT Upon written consent of both parties, order issued by court Issues referred to comissioner agreed upon by parties or appointed by court b. Reference ordered on MOTION Upon application or motu proprio reference to comissioner i. Requires examination of a long account on either side ii. Taking of an account is necessary for information of court before judgment iii. Question of fact, other than your pleadings in any stage (ii. and iii. For carrying a judgment or order into effect) ORDER OF REFERENCE Specify or limit powers of comissioner Powers of Comissioner a. Regulate proceedings in every hearing before him b. Do all acts and take all measures or proper for efficient performance of duties and unless otherwise provided c. Issue subpoenas and subpoena duces tecum d. Swear witnesses e. Rule upon admissibility of evidence NOTE: clerk of court cannot rule an admissibility of evidence but commissioner can Comissioner shall swear to faithful and honest performance and proceed with all reasonable diligence First meeting of parties within 10 days from order of reference with notice to parites/concerned

NOTE: Review matters not subject to compromise GENERAL RULE: Judge personallty receiv adduced evidence EXCEPTION: it CAN BE delegated to (optional) clek of court (who is a member of the bar) when: a. Default on ex parte hearing or; b. Parties agree in writing o Clerk of court no power to rule on objections; it must be resolved by court upon submission of report within 10 days from termination of hearing CONSOLIDATION OR SEVERANCE Cosolidation joining 2 or more cases together (same incidentl 30 diff. separate complaints, lawyer of defendant asks for consolidation) o Requisites :involves the same/common question of fact ot law; and : pending before the same court SC can consolidate cases together 2 or more cases coming from different parts of the country for the first time. These are called COMPANION CASES.

Failure to appear comissioner may o Proceed ex parte; or o Adjourn proceeding to a future day giving notice to absent party/counsel of adjournment Refusal of witness to obey subpoena deemed contempt of court which appointed commissioner Parties may apply with court for order requiring comission to expedite proceeding and make his report

REPORT OF COMISSIONER Set forth findings of fact and conclusions of law

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Attach thereto all exhibits, affidavits, deposits, paper and transcript, if any, of testimonial evidence prosecuted before him Notice to parties by clerk upon filing of report o 10 days to signify grounds other than those available to parties during the proceeding before the comissioner unless made before the commissioner Hearing upon the Report of Comissioner o Upon expiration of 10 days, set for hearing o Court may adopt, modify, reject it with instructions or require parties to present further evidence before comission GENERAL RULE: Findings of comissioner on questons of fact not automatically finding of the court. It needs approval of court EXCEPTION: parties stipulate that it shall be final and only questions of law be considered (estppel) Reasonable Compensansation of Comissioner taxed as costs against defeated party ot apportioned as justice requires. DEMURRER TO EVIDENCE Motion to dimiss filed by defendant after plaintiff had rested his case on the ground of insufficiency of evidence Move for dismissal on the ground that upon facts and law plaintiff has shown no right of relief DEMURRER TO EVIDENCE (RULE 33) Based on plaintiffs evidence, no cause of action Presented after plaintiff rests its case

Plaintiff present evidence

Respondent file demurrer to evidence

DENIED

GRANTED

Defendant still have right to present evidence

NO CAUSE OF ACTION (RULE 6) Based on complaint, no cause of action Presented at the outset of the case, before a responsive pleading is filed

Order denying demurrer to evidence is interlocutory and may be subject to petition for certiorari if with GAD

If plaintiff does not appeal or appeal denied: Since it is a motion to dismiss, then case is dismissed.

If plaintiff appeals and appeal granted: Order of dismissal is reversed and defendant deemed to have waived o Case is no longer remanded o Judgment on basis of evidence submitted by plaintff

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SUMMARY OF DATES / RELEVANT TIME Rule 14 Sheriffs Return Period to answer extraterritorial service by defendant Hearing of Motion Notice of Hearing Motion Day Motion to Dismiss If MTD denied If pleading ordered amended Answer to amended complaint Within 15 days from service Not less than 60 days after notice Not later than 10 days after filing At least 3 days before date of hearing Friday afternoon *next working day afternoon (if holiday)* Within time for making answer but before filing it; generally within 15 days File within balance of period but not less than 5 days Rule 11 courted from service of awarded pleading unless court provides for a longer period As a matter of right, 15 days after being served with copy; If not a matter of right, within 10 days after being served with notice of order admitting the same Any time before service of answer of motion for summary judgment 15 days from order of dismissal Filed within 15 days after last pleaing filed and served or epxiration of period for filing last pleading At least 3 days before pre-trial Within 10 days after termination of pre-trial

Rule 25 Rule 26 Rule 27 Rule 28

Interrogatories to AP Written Request Adverse Party Motion for Examination for Admission by

Same as Rule 23 Anytime after issues have been joined (meaning there is already an answer) When no action is already pending When an action is already pending

Motion for Production or Inspection Physical and Mental

Rule 15

Rule 16

Rule 30

Notice of Trial Adjournment

Rule 17

Dismissal of complaint by plaintiff Finality of Dismissal

Resolution of Objections Raised to Clerk of Court Rule 32 First meeting of parties before comissioner To signify grounds of objections on report of comissioner Hearing upon report of commissioner Demurrer to Evidence

Receipt of adverse party at least 5 days before trial Not longer than 1 month each adjournment not exceeding 3 months in all except authorized in writing by court administrator Within 10 days from termination of hearing

Within 10 days from order of referral Within 10 days from notice of clerk of court Upon expiration of 10 days from notice of clerk of court After plaintiff completed presentation of evidence

Rule 18

When Pre-Trial conducted Service of Pre-Trial Brief Pre Trial Order

Rule 33

Rule 19

Motion to intervene Answer to complaint-in-intervention Answer to amended complaint

Any time bfore rendition of judgment Filed within 15 days from Notice of Order admitting the same unless a different period is fixed by court As a matter of right, 15 days after being served with copy; If not a matter of right, within 10 days after being served with notice of order admitting the same Made as to allow witness reasonable time for preparation and travel to place of attendace By leave of court after jurisdiction obtained but before answer was served Without leave of court if answer has been served Anytime Within 10 days Cross interrogatories w/in 15 days from service direct interrogatories w/in 3 days from service re-cross interrogatories

Rule 21 Rule 23

Service of Subpoena Deposition pending action

Taking of Deposition Written Interrogatories

Rule 24

Notice of Deposition before Action

At least 20 days before date of hearing

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