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Remedial Law Reviewer Atty Tranquil Salvador 2011
Remedial Law Reviewer Atty Tranquil Salvador 2011
You just file action pubiciana with the appropriate value/amount of the claim, which is up to the Billions. Is
Do not make the mistake of confusing venue and jurisdiction in civil principal plaintiff.
Where do you file an action for extra-judicial foreclosure?
procedure. Jurisdiction is the power given by law to hear, try, and
o Extrajudicial foreclosure of mortgage is NOT a judicial action.
decide cases. Knowing what court is one thing, but knowing where to
It’s not covered by the Rules of Court, but Act 2135. For
file it is different.
purposes of EJ foreclosure, it should be filed where the
There was an agreement to development of a piece of land in
property is located.
Tanay, Rizal to become a memorial park. The duty of the owner
o But the mere filing and payment of fees (for multiple properties
(living in Quezon City) of the piece of land is to provide property.
in various areas0 can be paid in one office, as long as it can be
The duty of the developer (located in Pasig) is to dig up the land,
established that it covers all areas. But the actual sale will only
put drainages, etc. The owner of the land died, and the heirs are
be done in the place where the properties are located.
now substituting for their father. They want to rescind the
What about judicial foreclosure?
agreement to develop. Where do they file? o Rule 68 does not provide for venue for this SCA. But it is filed
o There are two steps in venue problems. First, determine: is it
where the property is located.
a real action or a personal action? o But if it is for collection of a sum of money, file it as a personal
action.
Where do you file an action for nullity of marriage? But what will you expect?
o RTC where the plaintiff resides, where the defendant resides, Motion to dismiss on the ground of wrong
or where their conjugal home is located (special rule in Family venue, coming from the defendant.
Courts issuance) But what if there was no motion to dismiss, and in
What should be your first consideration? What is the general rule? the answer, there was no allegation of improper
o Rule 4 (rules of venue) applies in general, UNLESS a specific venue?
law provides otherwise. There is waiver on the rules of venue.
On specific venues, as provided by law – Remember Rule 9, Section 1. This is the general rule on waivers and
o Give an example. objections on grounds not raised in an answer or MTD. Failure to raise
Actions for Quo warranto these grounds in MTD or answer is a waiver. Exceptions:
o What if you want to file an action for perpetuation of o 1. Lack of jurisdiction over the subject matter
testimony? o 2. Litis pendentia
This is covered by Rule 24 (deposition before action o 3. Res judicata
or pending appeal). o 4. Statute of limitations
Special rule: Place of residence of any expected What is the distinction that you have to make as to stipulations?
adverse party or defendant o If there are no words of exclusivity, then it is only an additional
o What about adoption? venue.
Where the prospective adoptive parents reside o If there are words of exclusivity (ex. “can only be filed in Cebu,
o What about probate? waiving all other venues”), then you can only file it there.
Where the deceased last resided at his time of death o (PBCom v. Lim is an example of a case with restrictive words)
o Writ of habeas corpus on residence of minors? In this case, the stipulation on venue in the principal
General rule: RTC where the minor is supposed to be agreement (PN) applies to the accessory contract,
found which is the surety agreement – which cannot exist
Thornton: But if unknown or cannot be found, in the
without the prior agreement.
CA or SC What if there was no Motion to Dismiss and no answer filed?
Can the parties stipulate on venue?
Apparently, the defendant did not notice the improper venue, or he
o Yes, they can.
decided to waive it. Can the judge later motu propio dismiss the
o In an ejectment case, the property is located in Cebu.
case after noticing that the venue is wrong?
Plaintiff resides in Makati, defendant in QC. Where do you
o No, he cannot motu propio dismiss the case on the ground of
file it?
improper venue. (Gumabon)
In the MTC of Cebu. Residence in general does not
Distinguish between wrong venue and lack of jurisdiction (ex. wrongly
matter.
filing an ejectment case in the MTC.) Here, while the rules on summary
o What if I file it in Makati?
Yes.
procedure include MTD as a prohibited pleading, an exception is lack of o Can the court render a judgment based on what was
jurisdiction (contra. wrong venue). presented in the preliminary conference?
What is the local version of forum non conveniens? Yes, the court can, if it is convinced at this point in
o Prohibited forum shopping (Read Bank of America) time.
o Assuming there is no judgment in steps 1 and 2, move to the
next step…
Summary procedure
3. Submission of judicial affidavits or position papers
o Is there a hearing in summary proceeding or trial?
1. Filing of the complaint
No hearing, no trial.
o In summary procedure, after filing the complaint, what can
o Within how many days do you submit affidavits?
the court do? Within 10 days
A) Dismiss the case outright o Can the court render judgment?
B) Issue summons General rule: 30 days from the filing of the last
o What is the responsive pleading?
pleading
Answer.
NOT submission for resolution, but
Can you file a MTD?
submission of the last pleading
In general, no. It is a prohibited pleading.
Exception: 15 days, if the court asks for further
When do you file the answer?
10 days, not the usual 15. clarificatory documents
o Can the plaintiff file a reply? What are the prohibited pleadings?
No. It’s also a prohibited pleading. o 1. MTD
o What if there is no answer? Except lack of jurisdiction over subject matter
The plaintiff can file a motion for the court to render Or failure to refer to lupon
o 2. Reply
judgment.
o 3. Bill of particulars
A motion to declare the defendant in default is a
o 4. MR or MNT
prohibited pleading. Just ask the court to render
o 5. Petition for relief from judgment
judgment. o 6. Motion to declare in default
o After the filing of the last pleading, move on to next stage. o 7. Third party complaint
2. Preliminary conference.
o 8. Memoranda
o Take note, in SP, it is NOT pre-trial but preliminary conference.
o 9. Dilatory motions for postponement
o When does the court set this?
Does this cover motion for cancellation of
Period of 30 days.
hearing?
o What happens here?
The parties can compromise, identify issues, etc.
If is not dilatory. But be careful with this, o In the preliminary conference, representatives appeared on
because the judge has to determine first if it behalf of the original parties (as attorneys-in-fact). This special
is dilatory. authorization is a valid cause for someone else to appear in the
o 10. Motion for extension of time plaintiff’s or defendant’s behalf.
o 11. Petition for certiorari, mandamus, prohibition against o What happens when the plaintiff is absent in preliminary
interlocutory orders of the court conference?
o 12. Interventions Case is dismissed
Jalique v. Dandan: o What happens when the defendant does not appear?
o This is a case where the respondents filed a joint counter As if he didn’t file an answer. The court can render
affidavit in an ejectment case, rather than a response. The judgment.
MTC decided in favor of plaintiff. RTC affirmed. CA moved to o What is the stopgap?
have the case remanded to MTC for re-hearing. Have an explanation OR send a representative
o HELD: Valid action by CA. The court interpreted the rules on o Where does this rule come from?
summary proceeding liberally here, because there was Provision on authorization does not appear in the
presence of a responsive pleading anyway and there was rules on summary procedure. But the SC applied to
challenge of the material allegations of fact in the complaint. Rule 70 suppletorily, the rules of Rule 18 on pretrial
it) parties agreed to compromise in the first place, when the court
o Dismiss the case with prejudice dismissed the initial case. The second case was whether the
What kind of dismissal? court approved the compromise agreement in the first place.
Summary dismissal – cannot contest These are different.
o Placed in direct contempt without opportunity Solar
o Is the rule on personal service mandatory? o Yes, but only as to matters of form, for as long as it will not
Yes. The rule is priority is by personal service. If you prejudice the rights of the accused
cannot do it by personal service, you can do it by Don’t forget that last bit!
registered mail, but you have to make an explanation. o What is the test when it will prejudice the rights of the
o In this case, it was made by registered mail and there was no accused, even if it’s a matter of form?
explanation. For this reason, the decision of the court to allow If the original defense of the accused will not change.
it was based on its reasonable discretion. BUT this is not the What is “amendment to conform to evidence”?
o This is section 5 of Rule 10
rule.
o Allegations are found in the body of the complaint/answer.
Musa
o What are the material dates here? What is alleged must be proven.
Period only commences to run from date of receipt of o If the evidence you presented went beyond the allegations, you
impossibility and there are earnest efforts to lack of jurisdiction over both SM and the person).
Gomez v. CA:
serve.
o Does it mean that if you are talking about an in rem action you
What is the purpose of summons?
o So the court can peg a date when it acquired jurisdiction over can venture on trying to serve it personally?
You can still do personal service, in case you find him
the person.
What is the proof of service of summons? somewhere in the Philippines by chance.
o Sheriff’s return. o Section 14 before limits itself to in rem or quasi in rem. It now
Note the rules on: extends likewise to actions in personam.
o Provinces
o Prisons Motions
What is the rule on voluntary appearance?
o It is not equivalent to summons, but if there is voluntary What is a motion?
o It seeks relief, but not a pleading.
appearance, summons can be dispensed with.
o It does not raise a claim, nor does it raise defenses in an
What is the rule on Motions to Dismiss?
answer.
o Does a motion to dismiss take the nature of an answer?
No, because it will not lead to a joinder of issues
What does EVERY motion need to have? What are the kinds of dismissal in Civil Procedure?
o A notice of hearing. o 1. There is a motion to dismiss in Rule 16, prompted by
o Directed to whom? defendant. – MOST COMMON
To parties. o 2. But there is also a motion to dismiss in Rule 17, filed by the
But also give notice to the clerk of court (even if the very same plaintiff who filed.
provision does not say it), because he schedules the Rule 17 also covers failure to prosecute, which is
hearings. another form of motion to dismiss.
o Absence of a notice of hearing has what effect? o 3. Demurrer to evidence
The motion becomes a mere scrap of paper. What are the grounds in Rule 16?
When must notice be given? o 1. Lack of J over the SM
o The motion must be filed in court and served to the other party How do you determine subject matter
at least three days before the date of hearing. (Three day jurisdiction?
notice rule) It is the law that confers the right to hear, try,
What is the ten day rule? and decide a case
o The hearing itself must be scheduled no later than 10 days The most common source is RA 7691
from the filing of the motion amending BP 129
Ex. you file it December 6. The last date you can set o 2. Lack of J over the defendant
the hearing for is December 16. Look again into proper service of summons
o Understand this along with the three day rule. Or voluntary appearance
What is the Omnibus Motion rule? o 3. Improper venue
o Include all grounds available; or else, it is deemed waived. Fall back to Rule 4, or special rule under law
o What are these exceptions? o 4. No legal capacity to sue
1. Lack of subject matter jurisdiction Minor – age of majority
2. Res judicata Corporation – must be duly registered with SEC
3. Litis pendentia Attorney in fact – look into scope of authority
4. Statute of limitations o 5. Pleading Asserting the Claim States no COA (PACS-COA)
What is motion day? Does not go into the falsity or truthfulness of the claim
o Friday afternoon. The pleading does not appear to state a COA
o If it is a holiday, set it on the next working day o 6. Res judicata
o Is this mandatory? What are the elements?
Yes. But some judges apply the rule liberally. 1. Final judgment
But since 2008, this rule has been applied strictly. 2. J over SM and person
3. Judgment on merits
Motion to dismiss 4. Identity of parties, SM, cause of action
o 7. Litis pendentia
Same as RJ, but without Preliminary hearing of the affirmative defenses. What is this?
o 8. Prescription o You can file an answer, and the court has discretion to hold
o 9. Failure to comply with condition precedent preliminary hearing of your affirmative defenses and use it to
Ex. Failure to refer to Katarungang pambarangay dismiss the complaint. Thus, an answer can be treated as a
Is this waivable?
MTD.
o YES. Because it is not
This is a new feature of the 1997 Rules of Court. This
jurisdictional.
has never been asked in the Bar.
Ex. Earnest efforts to compromise
o What is the reason for this new rule?
Ex. Exhaustion of administrative remedies
Note: a MTD is not a prohibited pleading, but when it
Does this fall under this ground?
issues summons, the court persuades parties not to
o Some commentators say yes. But
file an MTD, but to file an answer with an affirmative
some say failure to exhaust must
defense.
fall under PACS-COA
o Why is such court attitude?
o 7. PWEA (Payment, waiver, extinguishment, or abandonment)
Because issues will be joined, and pre-trial sets in
o 8. Unenforceable under Statute of Frauds
Of all these grounds, if the court dismisses, can it be re-filed? where parties can compromise.
o ALL o What is the difference between filing a MTD and an
o Except – [F,H,I] answer?
1. Prescription There is no preliminary hearing of defenses in a MTD.
2. Unenforceable under Statute of Frauds If the court mistakenly denies your MTD, what is your remedy?
3. Res judicata o Petition for certiorari on Rule 65 based on GADALEJ.
4. Extinguish of claim or demand (PWEA) o Does this petition for certiorari suspend the main
When can you file a MTD? proceedings?
o Within the reglementary period. Fifteen days. No. Even if there is a pending petition for certiorari,
How do you count a period? the main proceedings will not be suspended unless
o Just remember the rule on interruption. [Read up Bill of you obtain a TRO.
Particulars portion.] o The Eternal Gardens rule, which has been repeatedly abused,
There was MTD filed on basis of lack of J over the defendant. The invoking judicial courtesy here, does not apply anymore.
court, instead of dismissing the action, dismissing the MTD, or o Can the Court of Appeals dismiss the case if it feels the
ordering amendment of the complaint, filed alias summons. Is this RTC committed GADALEJ? Or should it only remand?
grave abuse of discretion? The court, subject to its discretion, can either dismiss
o There was none. Instead of dismissing the case and waiting or remand it. There is no hard and fast rule.
for re-filing, the court issued alias summons which will produce
the same effect. Dismissal of Actions
What are the ways by which a plaintiff can dismiss a case? o The 1997 rules are silent. Before, dismissal was the
o Filing a notice of dismissal any time before the answer is consequence, for failure to comply with Rules of Court. But
served. Dismissal is a matter of right. this is not the consequence anymore, because of the 2004
o What happens to the counterclaim? rules, which gives a specific outcome.
There is no counterclaim yet, because there is no o 2004 rules: DUTY OF THE CLERK OF COURT to move for
answer. pre-trial.
o Can this case be re-filed? Before actual pre-trial, a few days before, what happens?
Yes. o Preliminary conference before the clerk of court. It will be
What is the exception?
recorded and will form part of the pre-trial record.
Dismissed a second time under this section.
o They explore possibility of compromise, etc.
What if there is already an answer? – See Pingga case
o This is almost like a mini pre-trial.
o File a motion for dismissal.
Expect two dates in one notice –
o What happens to the counterclaim, if there is?
o One setting the preliminary conference
It does not get dismissed. Pingga limits the dismissal
o One setting the pre-trial itself
to the complaint, not the counterclaim. This On the first day of pre-trial – what is the order of the day?
abandoned BA Finance rule. o The court issues an order referring the case to a court-annexed
Does this rule cover both permissive and mediator. Forward the records to him.
compulsory counterclaim? o You have to pay fees for a mediator.
Yes. o For the time-being, the pre-trial proceedings are suspended.
This is why the provision says that within 15 o What is the period for suspension?
days, the party would have to manifest its 30-60 days.
willingness to prosecute it in the same But in the same order, the court will say that if within
action; otherwise it will be prosecuted in a this period, there is no compromise, there will be
separate action. resumption of pre-trial on a later day.
What if there is inability to compromise?
Pre-trial o Records returned to court. The court will resume pre-trial.
o The Judge with all “tact, patience, and impartiality,” endeavor
When is pre-trial conducted? to…
o Rule 18 Sec 1 does not say, it just says that the ex parte [Missed something]
motion by the plaintiff to move the case for pre-trial must be Judge talks to counsel and parties
done “promptly” Judge talks to only parties
o BUT the 2004 guidelines say it must be within 5 days after the [stepped out]
last pleading has been filed What do you need to submit at pre-trial?
What if the plaintiff fails to move for pre-trial? o Pre-trial brief.
o What if you fail to submit a PTB? o What if it is a criminal case and the prosecution is absent.
Same effect as if you didn’t appear at pre-trial. What happens?
Request for admissions: Rule 129 Section 4 – Judicial Notice: It will be re-scheduled.
o No need for introduction of evidence o What if the accused is absent?
o You want an admission to abbreviate the proceedings The prosecution CANNOT present evidence ex-parte
o You are submitting just proposals. If accepted by the other because it will violate the accused person’s right to
party, it becomes an admission. confront witnesses.
Issues – to be submitted for resolution o RULE 118. TAKE NOTE OF THIS. THIS IS THE
Documentary and testimonial evidence to be presented:
DIFFERENCE BETWEEN CRIMINAL AND CIVIL PRE-TRIAL.
o “One day examination of witness rule” – if you can direct,
o For an admission of the accused to take effect against
cross, re-direct, and re-cross a witness in one day, do so. (This
him, what must be done?
is in the guidelines, not in the Rules of Court.) It must be in writing and signed, by both the counsel
o Submit the most important evidence first.
and accused.
o Evidence will be pre-marked.
No such requirement in civil admissions in pre-trial.
What is the effect of failure to pre-mark?
Judicial Dispute Resolution
You can no longer present the evidence if
o In the past, the JDR process only applies in Makati. Now it
you failed to pre-mark it.
also applies in QC and Manila.
Unless the court allows you in the interest of
o The judge here is both a mediator and a conciliator and an
justice, or if newly discovered.
independent evaluator.
o What if you fail to name the witness in court?
o Unless the parties consent to continue with the JDR judge, it is
You cannot present the witness anymore.
mandatory that there will be a new raffle – and the new judge
What are the other contents of the brief that you may put?
o Referral to Commissioners who will hear, try, and decide the case is the trial judge
o Explore possibility of compromise o This step happens when the Clerk of Court receives the
o Possibility of judgment on pleadings or summary judgment Mediator’s Report of a “not settled mediation”
o Avail of deposition/modes of discovery o Check http://www.pmc.org.ph/downloads/JDR_Guide.pdf
How do you avoid consequences of absence?
o According to the provision, if there is a good excuse for Intervention
absence, the consequence will not vest. You can also
What is the concept of intervention?
authorize someone to appear on his behalf in pre-trial.
o A third party takes part in a case between other parties
What happens next?
o Because he has a legal interest in the subject matter of the
o Pre-trial order is issued by the court.
case or he will be adversely affected by distribution/disposition
DIFFERENCES BETWEEN CRIMINAL AND CIVIL PRE-TRIAL
of property in custody of the court
What does the court look at?
o Legal interest of the intervener Subpoena
o 1) Such intervention will not unduly delay or prejudice the
proceedings of the parties Types of subpoena?
o 2) Or if the right of the intervener can be protected in a o Ad testificandum: appear and testify
o Duces tecum: appear and bring with him the documents or
separate action
When can you intervene? things
o You can intervene any time before rendition of judgment in the N.B. Must appear too. Cannot just mail or send.
Who can issue a subpoena?
trial court
o 1. Court where witness must attend
o There is nothing in the rules talking about intervention in the
o 2. Court where deposition is taken
Appellate Court. But the court can exercise discretion to allow
o 3. Officer/body conducting investigation
intervention in the Appellate Courts.
o 4. Any justice of CA/SC in any case/investigation pending
After judgment, can there still be intervention?
Can the OMB issue a subpoena?
o As a rule, no.
o Yes.
o But if the rule is an indispensable party, the court will allow Can the office of the prosecutor issue?
intervention even after judgment. o Yes.
Can there be a complaint intervention or answer in intervention, or Is the receipt of a subpoena by a respondent in a case filed before
a complaint against either/all of the original parties? the office of the prosecutor necessary for the office to acquire
o Yes, for all.
jurisdiction over the respondent?
Nordic:
o No. It is totally irrelevant. Preliminary investigation before the
o There was a mortgage over a vessel to secure a loan. There
Office of the Prosecutor is a statutory right, not constitutional
was a default in the payment. For this reason, there was an
right. You can altogether dispense with it, or waive it. It is not
Extra-judicial foreclosure. While the petition was there, there
essential for DP.
was a subsequent case filed.
o There is an express provision in Rule 112(D) that says failure
o There was a complaint filed by the crew members of the vessel
to receive the subpoena will not bar the prosecutor from issuing
against the vessel in RTC Manila (sum of money case).
a resolution. It is not imperative.
o The mortgagee sought to intervene in the sum of money case,
Can a regular court judge subpoena a convict?
because it held a Preferred Ship Mortgage. o The judge examines if it is for a valid purpose
o HELD: No legal interest, no cause of action. There must be a
o For those under death/RP/Life and confined: must be
personal cause of action in order to intervene. Here, the
authorized by the SC to appear under subpoena
mortgagee had no interest in the sum of money case. And in Heart of the rule on subpoena is in Section 4 (Quashing a subpoena)
this case, the mortgagee can protect its rights in the o How do you quash a subpoena as testificandum?
foreclosure case. 1. Witness is not bound thereby
What is an example of this?
o If the witness is not qualified. Ex o Can a judge before whom the action is pending take
the witness is the spouse of the depositions?
person he/she is testifying against Yes. (Ayala Land)
2. Witness fees and kilometrage allowed by the Rules o Before whom should deposition be taken?
were not tendered If in the Philippines, 1. Judge, 2. Notary public, 3. Any
Witness must live within 100 KM of the place party authorized to administer oath, 4. The parties by
where hearing is conducted agreement/stipulation
You can also be arrested to compel you In foreign country, 1. Embassy, legation, consular
o How do you quash a subpoena duces tecum? officer/agent 2. One authorized by commission or
1. Unreasonable and oppressive letters rogatory, 3. Stipulation of parties
2. Relevancy of the books, documents, etc. does not o Dulay v. Dulay – A brother duped his brother; both are
appear Filipinos. One brother is a naturalized American, and applied
3. Failure to tender the costs of production for the latter’s naturalization. The US government approved it.
4. Kilometrage/witness fees Not in the duces
The later, once there, was made the trustee of the deposits of
tecum part but you need the witness to appear too
the former. He spent the money. Filed case in Philippines.
5. Failure to describe with particularity N.B. not in
Took deposition of bank manager in US. The local court
the rules
communicated the request with foreign authority (letters
Can the clerk of court issue a subpoena in the absence of a judicial
rogatory – communication by one judicial authority to another –
action? (Note, this is not referring to investigation by a quasi-judicial
to follow the rules of the latter). This is distinguished by
body.)
commission – where a person is appointed commissioner; the
o No.
deposition is governed by Philippine rules.
Depositions (Rule 23) o In this case, the court of Boston ignored the letters rogatory, so
they applied for deposition before a notary public. The local
What can be subject of deposition? court refused to accept, requiring a consular certification.
o Any matter, as long as not privileged o The court here allowed because the letters were ignored and
o AND relevant
there was no consular office in Boston, so they allowed
o What do you mean by not privileged?
deposition before NY notary.
When the witness is disqualified (e.g. attorney-client,
When is there need for leave of court?
physician-patient, penitent-priest, husband-wife, public o Whether an answer has been filed or not. When there is an
office in related to State)
answer, you do not need leave of court, just notice. When
Ayala Land applied section one (see Modes notes). It explained how to
there is no answer yet, you need leave of court.
commence depositions.
o Contrast with amendments: You need leave of court after C) Unable to attend to due age, sickness,
answer; before answer, you just need notice. imprisonment, etc.
What is the process to take deposition? D) Cannot compel attendance of witness through
o Rule 23, Sections 19-21. subpoena
o Who does the recording? E) Exceptional circumstances
A stenographer, clerk, secretary – under the direction Can a subpoena be issued by reason of deposition taking to make
and supervision of the officer sure the deponent comes?
o Then? o Yes. Rule 21, Sec. 5
The deponent examines it and signs it Can a deposition of a deceased person be presented in court? Is
Can signing be waived? this not hearsay?
Yes. o It can be presented, as long as it was subjected to cross
o After the signature, what next?
examine. It is hearsay, but it can be submitted.
The officer certifies it first
o Is cross examination a necessity?
Then files it in court with indication that it is authentic
Yes. This is necessary to exempt it from the hearsay
and complete
rule.
If the procedure is not followed, what will happen? What is the
If you take a deposition, are you compelled to present it in court?
consequence? o No.
o A party can file a motion to suppress deposition because the If you use a part of a deposition, can the rest be presented?
procedure was not followed o Yes.
o What is the Ayala doctrine? Always distinguish between “take” and “use.”
The rules can be relaxed because the deposition was Who are disqualified to be deposition officers? [Memorize; this has
taken before the judge in the main case. The judge not yet been asked]
knows it’s authentic and complete by personal o 1. Sixth degree of consanguinity from party/employees
knowledge. o 2. Sixth degree of consanguinity counsel of parties/employees
What are the uses of deposition? o 2. Financially interested in the action
o 1. Impeach testimony of witness Re: irregularities on taking of deposition. What is the general rule
[For prior inconsistent statements] on errors/irregularities on taking depositions?
o 2. Against other party (or officer of corporation that is another o General rule is that it is waivable
party) – for any purpose o What is the exception?
o 3. Used in place of oral testimony if the deponent: Relevance or competency of evidence failure to
A) Lives more than 100 KM from the place of trial object is not a waiver
except if the absence was procured by the party, or Unless a timely objection could have obviated the
out of the Philippines defect
B) Is dead When is the period to object?
o The same as the period to file the responsive pleading. “Annoy, embarrass, oppress” memorize these
o So to question direct: 10 days (period to file cross) words
o To question cross: 5 days (period to file re-direct) It is irrelevant
o To question re-direct: 3 days (period to file re-cross)
Can you take deposition even after pre-trial? Depositions before action or pending appeal
o Yes.
o Do you need to reserve? What is perpetuation of testimony?
No need, even if you do not reserve it during pre-trial. o See below
Jonathan Landoil If there is no pending case can you take a deposition?
If you take a deposition of a person, do you still have to present the o No. You file a case for the perpetuation of a testimony
person as a witness? o So you file a case for the purpose of perpetuating a testimony
o You still have to present him in court, in general. Depositions What is the special rule on venue here?
o Place where the expected adverse party resides
cannot take the place of actual physical testimony in court.
When could you apply for deposition pending appeal?
o If you fail to cross examine the witness in the deposition,
o Before judgment becomes final
can you still cross-examine him in court?
o There is a pending case for certiorari, can you take a
Yes, you definitely can! Sabio
deposition pending appeal?
What are the consequences for non-compliance with order for
No, certiorari is not an appeal
deposition?
o Can it be dismissed? Interrogatories to parties
Yes, the court can dismiss. There can even be a
judgment by default Distinguish Rules 23 and 25:
However, in the old case of Arellano, the court o Rule 25 – Interrogatories to PARTIES. Always to parties.
dismissed the case due to refusal to be subjected to o Rule 23 – Party or a witness, or any person for that matter
deposition. But the SC said it was wrong. In this How must the questions be answered?
o Rule 23 – there is direct, cross, re-direct, and re-cross
case though, the matter subject to deposition is an
o Rule 25 – Just one set of questions to be answered by the
incidental matter only, not the main issue of the case.
Bottom line: it IS a possible result, but fall back on other party
Re: time to answer
materiality of the matter
o Rule 23 – no fixed time to answer, because what dictates the
Can the court regulate the deposition? (Ex. excluding certain
period is the officer (since they have to appear before the
matters)
officer)
o Yes.
Can the other party oppose the taking of a deposition? o Rule 25 –
Are the uses of the depositions the same?
o Yes.
o Between Rule 23 and 25, the same
o Under what grounds?
What is the effect of failure to serve written interrogatories to o But the party’s counsel may answer (Larada)
parties? What if the other party fails to respond?
o You cannot compel the adverse party to testify if you did not o Considered an implied admission
serve written interrogatories Who will suffer the cost?
o Can you call the adverse party to the witness stand? o The other party who refused to admit, if it is eventually proven
YES! In general, YES. The answer is in Rule 132, to be genuine or true
Sec. 12 o But in the meantime, advanced by the party requesting
It is different if you call on the witness the accused
Producting or inspection of things/documents
himself (in a criminal case)
What do you apply for?
Request for admission
o Request that a party produce and permit inspection of
What is a request for admission? documents, papers, objects, other tangible things
o 1. Requesting to the other party that he admit the genuineness o OR to allow entrance into a place under control of the latter and
have to prove it exists and it is genuine and the other party refuses or says it is lost, then you can
The contents can be up for contentions produce secondary evidence.
Case: There was a pre-trial. One party submitted a o But there is need for request to produce
list of equipment, and wanted the other party to o So if you get a request to produce but it is targeted to a specific
accept it. The other party said it was incomplete, and document, most likely it is for secondary evidence
You applied for production of books/papers/documents, and you
asked that the first party prepare a new list to submit
are allowed to examine. Are you bound to present it as your
to the court within X days. Instead of submitting it to
evidence?
court, the first party submitted a request for admission
o No, you’re not required. It is a mode of discovery – a way of
to the other party. Instead of answering, the second
discovering evidence. If you like what you see, you still have to
party kept quiet. HELD: It was an implied admission.
go through the process of presenting it in court.
o 2. Or truth of any material and relevant matter
The admission must be directed to whom?
o The adverse party (Not the counsel – it must be served to the
other party) (Duque)
N.B. Under 2004 guidelines, it is the duty of the judge to issue an o Yes.
order to the parties to avail of Modes of Discovery under Rules 23, 25- Can you use modes of discovery in special proceedings?
27 o Yes.
o Special proceedings do not provide for an answer. But the
Physical and mental examination general principle of suppletory application (Rule 72, Sec. 2).
Is there criminal deposition?
So limited in its use that even the 2004 guidelines do not include it o There is a Rule 119. Use it instead of Rule 23. Rule 119 talks
When can you apply for this? about a pending criminal action, but it is not yet trial.
o Mental or physical condition is in controversy o You can call witnesses even before trial and obtain their
This is the only mode of discovery where the court can motu propio testimony.
issue it. The other modes, you have to apply for. o But there is distinction between conditional examination of
What is the consequence if the copy of the examination is given to witnesses for the prosecution and condition examination for
the requesting party? accused.
o You waive the privilege. For prosecution – examination before trial can only be
o Because of your request, the other party can now also ask for
done in the court where the action is pending because
previous or subsequent examination, too.
the law wants it to be harder for prosecution.
o What if the requesting party refuses?
For the accused, it should be made before either any
If by chance, the requesting party’s physicians were
judge, before any member of the Bar (good standing,
allowed to testify, their testimonies can be excluded.
etc.), any inferior court designated or appointed by a
N.B. Privilege of doctor-patient only applies to civil case, not criminal
superior court.
case
o But the law does not say it’s deposition. But it’s akin to such,
Consequences of non-compliance according to Supreme Court decision.
Does physical and mental examination as a mode of discovery
If there is refusal to answer, what are the consequences? apply in criminal trial?
o 1. The case can be dismissed if he is plaintiff o It’s inherent.
o 2. If the defendant, judgment by default
o 3. Pleadings can be stricken out Trial
o 4. Held in contempt
He can be arrested Both civil and criminal procedures will not provide for conduct in
When does arrest as a consequence not apply? examination of a witness. Where is it found? Evidence.
Request for physical or mental examination What is the order of presentation of evidence?
o 1. Plaintiff, to support complaint
Segue: deposition in other proceedings o 2. Defendant, present defense
Can you use modes of discovery in criminal actions? o 3. Third party, and so on
o 4. Parties faced with counter or cross claim, present defense o Yes, if it is a subpoena ad testificandum. If it is a subpoena
o 5. Rebutting evidence duces tecum, there must be order by court.
Can it be reversed? Can the clerk of court resolve objections raised in an ex parte
o Yes, it can, if there is an affirmative defense. proceeding?
o Plaintiff in the usual and ordinary course of things presents o No.
before the defendant. o Just note the objections, and forward to the judge.
o [Check for midterms: can there be reverse order if it is a civil o The other party is not there – who will object?
case?] Well, the clerk of court just has to note it down if
Can there be judgment without trial? clearly objectionable.
o When parties agree on facts
o [spaced out] Cf Trial by commissioner
What are the grounds for cancellation of hearing?
o 1. His presence is indispensable and illness is excusable Who is a commissioner?
N.B. it does not say the party must be indispensable; o Person authorized by the court to
just his presence o Ex. auditor, referee, examiner
o 2. Absence of evidence, and the evidence is material and Any matter can be referred to the commissioner, when?
o If the parties consent. ANY MATTER.
cannot be procured despite due diligence
Who can receive evidence? But if the parties do not agree, what can be referred to the
o Generally, the judge commissioner?
o Exception: to the clerk of court – delegated authority to receive o 1. Requires examination of long account
o 2. Taking of account necessary for court’s information for court
evidence
1. There are default proceedings to render judgment/execute it
2. Ex parte o 3. Question of fact arising from motion
Examples of ex parte proceedings? Can a commissioner issue a subpoena?
o Default o Yes.
o Application of indigent o Can he issue a subpoena duces tecum?
o “As in” default [did not appear Yes, as long as within the order of reference (his
requires you to do something or perform something that you do to the main case?
o The main case has to be decided within 6 months or else the
not ordinarily want to perform, in order to maintain the status
judge can be disciplined by the court. This is a new provision.
quo
Aquino: Dissolution of the injunction, even if it was obtained in good summary hearing to determine w/n it must
faith, it amounts to a determination that it was wrongfully obtained. A extend the TRO from 3 to 20 days.
right of action against the bond accrues. o Normal 20 day TRO – issued by a regular court judge after
Garcia: Posting of a bond is a condition sine qua non to issue a writ of raffle
PI. Without notice and hearing
Borromeo: Where the parties stipulated in their credit agreement, PN, Great and irreparable injury
contract, etc., that the mortgagee has the right to foreclose in case of Can a 20 day TRO be extended?
No, it automatically expires w/ or w/o a
default, this defeats any future claim for the issuance of a PI.
SC Circular (2007): On issuance of PI on extrajudicial and judicial period.
Unless you obtain a preliminary injunction
foreclosure cases.
Can a preliminary injunction be issued without notice and
o 1. Today it is not enough to say that you have paid the amount.
hearing??
Mere allegation of payment without showing actual payment is
o No. NEVER. There must always be notice and hearing.
not basis for issuance of PI.
o The hearing is always summary in nature whether TRO or
o 2. Mere claim/allegation that the interest is unconscionable or
preliminary injunction.
excessive does not justify issuance of the PI unless the legal
If you file a petition for certiorari against the PI, does it suspend
interest is paid.
the main case?
What is a Status quo order?
o No, it does not. This is an amendment introduced in 2007.
o It is not a preliminary injunction. Minimum requirements of
o Can you extend the period by which you can file a petition
TRO/injunction do not apply to status quo orders.
for certiorari (60 days)?
o It can be applied in TC or appellate court. A status quo order
No more.
can be issued without a bond, or without a fixed term. Before the 2007 amendment, you can ask for a 15
o BUT in the SC Circular (2007): requirements for TRO must
day extension. This was removed already.
apply to status quo orders if issued for judicial or extrajudicial How can you dissolve a writ of PI?
foreclosure of mortgage. o Is insufficiency a ground to dissolve a PI?
Can the court require you to post a bond for a TRO? NO. It just a ground to deny, not to dissolve
o Yes. o 1. File affidavits showing there is no reason for the PI
What are the two kinds of TRO? o 2. File a counterbond + an affidavit showing that he will suffer
o 72 hour TRO – can only be issued by executive judge of a more damage than applicant will
multi-sala court, or presiding judge of single sala court Is a counterbond enough?
Without notice and hearing No
Can these 3 days become 20 days? Is the statement enough?
Yes, after raffle and it is assigned to a regular No
court judge, who can now conduct a
Rule 59 What is the value of the bond?
o THIS IS THE ONLY PROV REM WHERE THE COUNTER
The only provisional remedy that can be applied for post-judgment and BOND IS DOUBLE THE VALUE.
even if it is already final and executory. What are the contents of the affidavit?
Grounds: o Memorize this for the bar
o 1. Property is in danger of being lost o 1. The applicant is the owner of the thing
o 2. Property is in danger of being wasted/dissipated o 2. Property is wrongfully detained
o 2. Stipulation in a mortgage contract and the security in the o 3. Property is not lawfully taken
mortgage is not enough to cover the value of the application o 4. The fair market value of the property
o 3. Other reasons the court finds convenient When can replevin be applied for?
Requires a bond o You can only apply for this AT ANY TIME BEFORE AN
How do you dissolve the bond? ANSWER.
o 1. Show no cause o For the other provisional remedies, you can apply anytime
o 2. Post a counterbond while the action is pending (or for receivership, even after)
What is your remedy after an answer is filed?
Rule 60 – Replevin o You file an attachment, but the effects are different.
o What are the differences?
Can property held as evidence in criminal case be subject to a writ 1. In replevin, the property subject of the action is
of replevin? taken. In attachment, properties, whether real or
o Superlines: NO. In the affidavit of the affiant, the property is
personal are attached to secure the judgment
not subject of custodia legis, execution, or attachment. The 2. In replevin, when the writ is served, the sheriff takes
deprivation, to be validly subject to replevin, must be illegal or possession, and delivers it to the applicant (unless a
unlawful. counterbond is filed within 5 days). In attachment,
o Property can be said to be in custodia legis, not only when it is
personal property is taken by the sheriff and delivered
in official custody, but if it pursuant to a legal order in a case
to the court; for real property, the sheriff annotates at
Can one quash a writ of replevin?
the dorsal portion of the title.
o Of course, it may be quashed or dissolved
Note that the main action is recovery of possession of property. The
o How do you dissolve?
1. If you want to regain immediately custody or issuance of a writ of replevin is just a provisional remedy.
Can there be a principal action for replevin as a provisional
possession, you just simply post a counter-bond
[take note of this] remedy?
2. Attack the sufficiency of the replevin o No, just like everything else, it is a provisional remedy.
Here, you cannot effect an immediate o BUT because of the ADR rules, you can file any provisional
four others require a bond. The person applying for support obviously not in conflict with the claiming parties, or has no interest at all.
Are there filing fees for an interpleader action?
needs money.
o Yes.
o N.B. For all these other provisional remedies, just follow Rule
o However, the applicant, not being violated nor is he a Real
57 Rule 23. The general rule is you can only recover damages
Party in Interest – is entitled to a lien on the judgment award
from a bond while the action is pending.
What is the difference with intervention?
o In intervention, there is already a pending case. Here, you o Removal of cloud
initiate the action. o Quieting of title
o Reformation of instrument
Rule 63 – Declaratory relief When can you reform?
There must be mutual mistake.
Almeda: Enumerated the requisites of declaratory relief: Can there be execution in a declaratory relief case?
o 1. Subject matter is a deed, will, contract, or other written o Yes, nothing prevents the filing of a counterclaim in a
instrument, statute, EO, or regulation declaratory relief, and there can be execution pursuant to this.
o 2. The terms of the documents are doubtful and require judicial
construction Rule 64 – Review of judgments and Final orders of COMELEC/COA
o 3. There must have been no breach of the documents in
1. This is actually a petition for certiorari. If you file under Rule 64, it will
question
o 4. Actual justiciable controversy be named a Petition for Certiorari
o 5. Ripe for judicial determination 2. The period to file a petition for certiorari under Rule 64 is 30 days,
o 6. Adequate relief is not available non-extendable.
Bottomline: purpose is for interpretation and determine validity. It’s not o But the period can be interrupted, if an MR is allowed. In which
about constitutionality. case, you get the remaining period.
o Also, there must be no breach 3. This has a limited application; it only covers decisions by the
What if there is breach? COMELEC and COA.
o There will be conversion to an ordinary civil action. This is the NOTE: For 43 and 64, all the attachments are certified true copies.
only such action that can be converted. The reason is you involve Quasi Judicial Agencies.
Do you need to pay filing fees when it is converted?
o Yes, you need. Rule 65 – Petition for certiorari, mandamus, prohibition
Which court has original jurisdiction?
o RTC. First rule of Rule 65: you do not talk about Rule 65. Second rule of Rule
o What if there is an allegation of unconstitutionality? 65: you do not talk about Rule 65. You have to fight on your first night.
The RTC has no exclusive jurisdiction; you can file it Real first rule of Rule 65: this is not an appeal
elsewhere like the SC. The RTC only has exclusive Elements of certiorari?
o 1. GADALEJ
jurisdiction if it is a pure question of declaratory relief
An action for declaratory relief must be dismissed if there is a pending o 2. No plain, available, speedy ordinary remedy
What is prohibition? Should there be GADALEJ?
action for unlawful detainer.
o Yes. The same is required – GADALEJ. No plain, available,
Malana: Reiterates that declaratory relief presupposes no actual
speedy ordinary remedy.
breach.
o It is the same as certiorari.
Second paragraph of Sec. 1: -- covers “other similar remedies”
Certiorari – whose decision can you question?
o Judicial or QJA o 4. The person instituting quo warranto in his own behalf must
Prohibition – whose decision can you question? show that he is entitled to the office in dispute.
o Judicial, QJA, or ministerial This is where the person aggrieved himself files (Sec
What is the difference between prohibition and mandamus? 5)
o Limited to ministerial functions. What should he show?
o Here, you are requiring him to perform. 1. His claim
Can the OMB be compelled by mandamus to file an information? 2. And that he is entitled to the office
o No. It is not ministerial. When can you file it?
If you entered into a contract with X to build a house for you, and X o 1. Usurpation
received the advance of the contract price, and X did not build the o 2. Public officer who does or suffers an act constituting ground
house, can you compel his performance by mandamus? to forfeit office
o No; it is not ministerial. It is a contractual obligation – specific o 3. Association not duly incorporated
performance. Quo warranto is also available if a government
Can an OMB judgment be reviewed? corporation has offended against its chapter.
o Generally, under Rule 43. It is a prerogative writ, where the government can exercise its right to
o However, if the decision of the OMB in a criminal case is demand proof of what right a person has over office
tainted with GADALEJ, Rule 65 Certiorari can be filed with SC. What is the venue?
In prohibition, you cannot prohibit an act that has already been o 1. RTC where respondent resides
performed. It is already moot. o 2. CA
o 3. SC
Quo Warranto o This is another example of concurrent jurisdiction
o What is the special rule?
Who commences an action for quo warranto? If it is the Sol-Gen who institutes the action, it can be
o Liban: Generally commenced by the government.
filed in the courts of the City of Manila
o 1. President, directing the Sol-Gen
What is the period to institute an action for quo warranto?
o 2. Sol-Gen, in the name of the government, when he has good
o One year from happening of the event
reason to belief Can you recover damages from a quo warranto judgment?
o 3. Upon the relation of another person, telling the Sol-Gen to o One year from entry of judgment
institute the action A person who is declared by the court to be entitled to an office should
What is the special requirement if it is upon the require delivery of books, papers, documents in the possession of the
relation of another person? usurper – if he refuses, he can be liable for contempt.
There must be approval by the court. If not If there is a dispute between and among the Board of Directors of a
approved by the court, the Sol-Gen will not private corporation, one group claiming that they have been
file. usurped, is the proper remedy quo warranto?
o No. This is an intra-corporate dispute to be filed in the regular Government entered property (took it) and caused demolition of
courts (RTC) having original jurisdiction. improvements. But before there was order for expropriation, the
government said “huwag na lang.” Can the government withdraw?
Rule 67 – Expropriation o Yes. But it is liable for damages.
If there a subsisting contract between government and the private
If it involves a government facility which is subject of
person, there can be no expropriation contrary to that contract.
expropriation, how much deposit do you need to give? Determination of just compensation is a judicial function.
o Rule 67, Sec 2 provides that for real property, it must be NPC v. Manubay: Is traversing a lot with transmission lines, is there
assessed value, in general. If it is personal property, assessed expropriation or easement fees?
[double check] o There is expropriation
o Gingoyon: The government must pay at least the proffered Mactan Cebu Airport: When you say “public purpose,” it must be the
value, not the assessed value. (RA 8974 – the deposit for purpose stated, and not another purpose, even if public too
immediate possession is proffered value.) o The acquisition of government of property is limited to the
Who can expropriate? public purpose stated, because it is not a simple purchase in
o National government fee simple, unlike normal purchase of property.
o LGU
o Instrumentality of government
Veluso v. Panay:
o LGUs by themselves have no inherent power of eminent
domain. Thus, strictly speaking, the power delegated to the
LGUs is “inferior domain.”
o But an LGU can expropriate.
o What are the requisites before an LGU can exercise
eminent domain?
1. Public use, public purpose, public welfare
2. [xxx]
3. Just compensation
4. Valid and definite offer previously made to owner
but not accepted
Can a complaint for expropriation be withdrawn?
o It can be withdrawn for as long as there is no judgment yet
o Once there is an order for expropriation, it can no longer be
withdrawn