1

Riano :

Must go to modes of discovery

instead. Not Bill of P.
b. Asking particulars about those that
can be averred generally :
Ex. Malice, knowledge and
condition of mind ( Rule 8 sec. 5)
and condition precedent
c. Asking to show the jurisdiction of
the court to render judgement
- Including foreign courts

Chapter VI
Proceedings after Summons and
Motion for Dismissal

Options of the defendant upon receipt

of the complaint:
a. Motion for a bill of Particulars
b. Motion to Dismiss
c. File an answer
BILL OF PARTICULARS
Grounds:
a. Ambiguity/vagueness of the
information
b. That the defendant cannot fully
defend himself due to lack of
information
c. Insufficient content
Not only to a COMPLAINT but any kind
of pleading

Note:
i.
ii.

a. Rule 23
Depositions pending action
b. Rule 24Depositions before action or
pending appeal
c. Rule 25Interrogatories to parties
d. Rule 26Admission by adverse party
e. Rule 27Production/inspection of docs and
things
f. Rule 28Physical and mental examination
g. Rule 29Refusal to comply with modes of
discovery

Before responding to a pleading

Must be within the period
Contemplated in Rule 11

Hence,
a. Complaint
:
15 days after the service of
summons
b. Counter/cross claim
:
10 days from the service of the
said claims
c. Reply:
10 days from the service of said
reply.

Purpose: to enable the movant to

prepare for his responsive pleading
a. Right to be informed
When not allowed?
a. To disclose the evidences relied
upon

But if the purpose is to prepare for the

trial, he must avail the discovery
procedures:
(note: in CrimPro bill of P is proper to prepare for
trial)

When to file?
-

In a complaint, evidentiary facts are not

included (Rule 8)
Omission to plead fraud that results to the
absence of one or more elements to an
offense
May be a ground for DISMISSAL

Requirements ( B of P)
a. Defects complained
b. The paragraphs where they are
found
c. Details desired
(BQ) WHAT MUST THE COURT DO ?
a. Clerk must inform the court upon the
receipt

2
b. The court may then:
i.
Deny outright
ii.
Grant outright
iii.
Hold a hearing

MOTION TO DISMISS

Note: hearing is merely discretionary

What happens when it is granted?

(whole/partly)
- Order the pleader to submit to the
bill of particulars
- Give what is asked
Period of submission?
- 10 days from the notice of the
order
Effect on non/insufficiency of
compliance
The court may
a. Strike out the pleading
b. Strike out the portion to which it
directed
c. Any other order the court deems
just
A motion for a bill of particulars is not
a pleading
- Not a responsive pleading
- Whether granted or not, movant
may still file a responsive pleading
- Hence, the period to file a
responsive pleading is
interrupted upon filing the
motion

Note: the period to file a responsive pleading after

filing a motion of BP shall not be less than 5 days

It is not a pleading
Hypothetical admissions of a motion to
dismiss
- When filed the movant
hypothetically admits the truth of
the compliant
- But only those sufficiently pleaded
- Material allegations
- Not Conclusions
Omnibus Motion Rule
Note: applicable to motion to dismiss only
If no motion to dismiss, no waiver of defense.
Hence, it may be stated as an affirmative
defense

When a motion to dismiss is filed,

all grounds must be pleaded
- Those not pleaded deemed waived
Exception:
A. Jurisdiction over SM
B. Litis pendencia
C. Res Judicata
D. Prescription
Notice of hearing is mandatory
- Failure/insufficiency merely pro
forma
- Does interrupt the period
When to file?
- Period to file an answer
- But before filing an answer
Exception (can still be filed even after
filing an answer)
a. No jurisdiction over sm
b. Prior judgement
c. Pending litigation
d. Barred by statute of limitations

Note: the following grounds where the court may

dismiss the case motu proprio. Provided thta they are
pleaded and apparent in the evidence on record.

Is
-

laches a ground for dismissal?

Not entirely
It is not expressly enumerated but
But it is implied in Rule 16 Sec. 1
H

3
-

If pleaded as a ground, hearing and

evidence is required

-shall not prevent the prosecution in

the same or separate action of a
counterclaim pleaded in the answer if
the defendant

Note :
i.
ii.
iii.

No res judicata in criminal cases

denying a motion to dismiss is an Interlocutory
order
Hence, it is not appealable

Thus, where the defendant pleads a

counterclaim in his answer, and after
the preliminary hearing on his
affirmative
defenses,
the
court
dismisses the complaint, it would be
error for the court to dismiss the
counterclaim.

When motion to dismiss is denied

- File an answer
- No appeal
- Remedy:
a. Certiorari
b. Prohibition or
c. Mandamus
Grounds for certiorari/prohition
- GAD
Grounds for mandamus
- The court unlawfully neglected the
performance of an act
- Which the law specifically enjoins
Plaintiffs remedy in case the MTD is
granted:
(depending on the grounds use)
a. Refile the complaint Improper
venue
b. File an appeal from the order of
dismissal
- Res judicata, prescription,
jurisdiction, litis
- Since in this case dismissal is
without prejudice
- But if the ground is failure to state
CA- not appealable

When complaint cannot be refilled?

a. Barred by prior judgement
b. The action is barred by statute of
limitations
c. The claim or demand has been
paid, waived, extinguished etc.
d. Unenforceable under statute of
frauds
- It is dismissal with prejudice,
hence, it cannot be refilled
- But it is appealable (only remedy)
Effect of dismissal of complaint on the
counterclaim

Hearing requirement
- Factual findings needed
- Must present arguments
evidence

and

DISMISSAL
Dismissal by mere notice of dismissal
- Before the service of an answer or
the service of a motion for
summary judgement
- The complaint may be dismissed
by the plaintiff by filing a notice of
dismissal
- Upon filing, the court may then
issue an order confirming the same
When is such kind of dismissal a
matter of right?
-before the answer or a motion for
summary
judgement
have
been
served to the plaintiff
Can the plaintiff still refile?
- Yes
- Because it is a dismissal without
prejudice
When is it with prejudice?
- Notice of dismissal states that it is
with prejudice
- The
plaintiff
has
previously
dismissed the case on a court with
competent jurisdiction based or
including the same claim
(two-dismissal)

DISMISSAL BY FILING A MOTION TO DISMISS

NOTE: Once the answer and motion for summary judgement
has been served, dismissal is not longer a matter of right

Effect
of
dismissal
upon
a
counterclaim already pleaded (BQ)
- If a counterclaim has already been
pleaded by the defendant prior to
the service upon him of the
plaintiffs motion to dismiss, and the
court grants the said motion to
dismiss, the dismissal shall be
limited to the complaint
- The counterclaim is not dismissed,
whether compulsory/permissive
Dismissal Due to Fault of Plaintiff

Note: even if the notice does not stipulate that it is

with prejudice, the dismissal is still with prejudice
when the plaintiff has provided reasons that it should
not be refiled.

Two dismissal rule, Applicability (BQ)

a. Plaintiff has dismissed the action
twice
b. Based on or including the same
claim
c. In a court of competent jurisdiction
Hence, no refiling is allowed.
- The first dismissal is without
prejudice
- The second dismissal is already
with prejudice
- The 2nd dismissal will then be
considered as an adjudication upon
the merits

Grounds:
a. Failure to appear w/o justifiable
reason, on the date of his
presentation of evidence
b. Failure to prosecute his action
for an unreasonable length of
time
c. Failure to comply with the rules
of court
d. Failure to comply with any other
order of the court
- May be done motu proprio/
motion of the defendant
Effect on the counter claim
- Without prejudice to the right of
defendant to prosecute his
counterclaim
- In the same action/ separate
one
Such kind of dismissal is with
prejudice

5
-

Exception: when the court states

otherwise

CHAPTER VII
PRE-TRIAL AND MODES OF
DISCOVERY
Concept, nature, purpose of Pre-trial
(BQ)
The following are the things that the court
must consider in a pre-trial before
proceeding to the trial:
a. Possibility of amicable settlement/
submission to alternative modes of
dispute resolution
b. Simplification of issues
c. Amendments to the pleading
d. Possibility of obtaining stipulation or
admission of facts and evidences to
avoid unnecessary proofs
e. Limitation of number of witnesses
f. Advisability of a preliminary reference
of issues to a commissioner
g. The propriety of rendering judgment
on the pleadings, or summary
judgment, or of dismissing the action
should a valid ground therefore be
found to exist
h. The advisability or necessity of
suspending the proceedings; and
i. Such other matters as may aid in the
prompt disposition of the action

Pre trial is mandatory in every civil

case
- Also in summary procedure
whether criminal or civil case
Effect of failure to conduct pre-trial
- Judge: warrants gross ignorance
- Party must insist pre-trial
PMC

The judge during pre-trial shall

refer the parties to the Philippine
mediation center
- If it fails, go back to pre-trial
conference
- Only some places have PMC
How is pre-trial called? (BQ)
- It is not the court who iniate
- The plaintiff must file an ex parte
motion
When should the motion be filed?
- After the last pleading has been
filed and served
- Specific: within 5 days from the last
pleading joining the issues has
been served and filed
- If plaintiff failed to file within the
said period, the clerk shall issue a
notice of pre-trial
What is a last pleading?
- Reply (the last permissible pleading
that a party may file after an
anwer)
- REPLY to a last pleading asserting a
claim
(wala ko kagets hahaha see riano p.44)

If the period to file the motion for

pre-trial is about to or has already
expired and the last pleading has
not yet been served and filed--motion for pre-trial must be
filed/notice is proper
Notice of Pre-trial
- Must be served to the counsel if
the party is represented by a
counsel
- If none, to the party himself
- a court may not proceed with the
pre-trial when the defendant has
not actually received the notice ,
this amounts
If plaintiff fails to appear
- May be a ground for dismissal
- With prejudice unless the court
states otherwise

Note: that dismissal with prejudice is appealable

Not certiorari

If the defendant fails to appear

6
-

The plaintiff may proceed in

presenting his evidence
The court may proceed with the
judgement on the basis of the
evidence of the plaintiff

Note: The order of the court allowing the plaintiff to

present his evidence ex parte does not dispose of the
case with finality. The order is, therefore, merely
interlocutory, hence, not appealable.

How non-appearance is excused

- Valid cause
- Or a rep will appear duly
authorized (SPA) to enter into the
following:
a. Amicable settlement
b. Alternative modes of dispute
resolution
c. Stipulations and admission of
facts
Identification and marking of evidence

It is vital to have documents and

exhibits identified and marked during
the
pre-trial.
The
current
rule
establishes the policy that no evidence
shall be allowed to be presented and
offered during the trial in support of a
partys evidence-in- chief other than
those that had been earlier identified
and pre-marked during the pre-trial,
except if allowed by the court for good
cause shown
Effects of reps and statement in
pretrial brief
- Serves as judicial admission
Failure to file a pretrial brief
- Same as failure to appear
a. Plaintiff
may
proceed
in
presenting his evidence
b. Court may render judgement on
the basis of the evidence
presented by the plaintiff
c. If the plaintiff fails to appear:
this may cause dismissal
Failure to settle does not terminate the
pre-trial

One day examination of witness rule

(BQ)
- The witness shall be examined for
one day only
- It is up to the court whether to
extend it or not
Most important witness rule
- When no settlement is achieved
- The parties shall determine them
- The court shall limit their number
Pre-trial order
-this is issued upon the termination of
the pre-trial
-shall be issued w/in 10 days from the
termination of the pre-trial
Implied issues deemed included in the
trial
-exception to the rule that only those
issues presented during the pre-trial
shall be part of the trial
Pretrial in CA
- Not mandatory

MODES OF DISCOVERY

DISCOVERY, MEANING
-Device employed by a party to obtain
information about relevant matters on
the case
From the adverse party in preparation
for the trial
Purpose
-mutual knowledge
-avoid surprises

DEPOSITIONS; mode or discovery rule

23 and 24
Two modes of taking depositions
a. Oral examination
b. Written interrogatory
When can it be used?
-pending action
-future action
-pending appeal

7
Deposition de benne esse- for pending action
Deposition in perpetuam rei memoriampending appeal and future proceeding

Depositions pending action

- w/ leave of court: before service of
an answer and after the court has
acquired jurisdiction
a. deposition of a prisoner
- w/o leave of court : answer has
been served
Before whom should it be taken?
-PH:
a. judge or
b. notary public or
c. any person authorized to administer
oaths if the parties so stipulate in
writing
- Outside PH:
a. Secretary of an embassy or
legation, consul, congen., or
consul agent of the PH
b. Such any person or officer as
may
be
appointed
by
commission or letters rogatory
or
c. Person authorized to administer
oaths as stipulated in writing by
the parties.

INTERROGATORIES TO PARTIES RULE 25

ADMISSION BY ADVERSE PARTY RULE 26

Note: read rule 23 sec, 13 for other qualifications

Effect of substitution of parties

- Does not affect the right of the
parties to use the depositions
previously taken
- All depositions lawfully taken and
duly filed in the former action may
used in a later action, as if
originally taken
The person who took a deposition from
another does not automatically make
the latter as formers witness.
But the introduction of the deposition
makes the deponent the witness of the
former

Riano did not provide any explanation re Rule 23 and

24. Hence, read the codal HAHAHA

To elicit facts from an adverse party

Purpose
- To allow one party to request the
adverse party in writing to admit
certain material/matters that which
likely will not be disputed during
the trial
To avoid inconvenience, a party may
before the trial require the other party
to :
a. Admit the genuineness of any
relevant doc described in and
exhibited with the request
b. Admit the truth of any material and
relevant matter of fact set forth in
the request
When request should be made?
-after all the issues have been joined
Effect of failure to file for admission
-the party who failed shall not be
permitted to present evidence on facts
-facts within the personal knowledge
of the other party
Remedies or actions of the adverse
party
- Sworn statement with the contents
a. Specifically deny the matters in
which admission is requested
b. If not, the details of the reason
why he cannot tell the truth nor
deny the same
When shall be the above statement be
submitted?
- Within the period stated in the
request.
- But not less than 15 days from the
service of the request

Or such further time that the court

may allow.
Effect of admission
Rule 26 Sec. 3 wala ko kasabot
Right against self-incrimination
HAHAH

man

a. Communication
between
the
husband and wife
b. Communication
between
the
physician and patient
c. Comm. Between the priest and
penitent
d. Public officers and public interest
e. Editors cannot disclose the sources
of published news
f. Voters and who they voted
g. Trade secrets
h. Information
contained
in
tax
census returns
i. Bank deposits

ata

Deferment of Compliance
- To avoid compliance with the
admission
- The party may object on the
request of admission
- Compliance shall be deferred until
all the objections are resolved
Withdrawal of admission
- Admission under rule 26 is
irrevocable, hence, not final
- Party who admitted may withdraw
or amend the same
How to withdraw?
- File a motion to relive from the
effects of his admission
PRODUCTION
OR
INSPECTION
OF
DOCUMENTS OR THINGS RULE 27

Read section 1 for the purpose

Filing of a motion
- It must show good cause
- The order shall specify the time,
place and manner of making the
inspection and taking copies and
photographs
- And may prescribe such terms and
conditions as are just.
Privileged documents
-this are docs, records, or books
because of their privileged and
confidential character, could not be
received in evidence
Types of disqualification by reason of
privileged communication

PHYSICAL
AND
EXAMINATION RULE 28

MENTAL

Applicability
- Only when is health or mental
capability is in question
Examples of action
a. An action for annulment of contract
when the ground is insanity
b. Petition for guardianship of a
person alleged to be insane
c. Action to recover damages for
personal injury, where the issue is
the extent of the injuries of the
plaintiff
Procedure
1. File motion
2. Notice to parties
3. Party examined may ask for the
copy of the results

9
4. On the other hand, the party who
made the examination may also
request
5. If the party examined refused to do
so, he may be ordered by the court
to do so
6. If the physician refuses to do so,
his testimony may be excluded in
the trial
Is there a waiver?
-yes
Read section 4 rule 28
REFUSAL TO COMPLY WITH THE MODES
OF DISCOVERY RULE 29

Refusal
to
answer
upon
oral
examination
- the court may compel him to
answer
- if still refuses, may be charged with
contempt of court
- the court may order the deponent,
party or counsel who advises the
refusal to pay the proponent of all
its expenses, including atty.s fees
- the court may also order the
proponent to pay the deponent of
any expenses incurred for opposing
the application in case the reason
for asking the order to require an
answer is without any justification

Note: the court has the discretion on how and when such
sanctions shall be applied

Refusal to answer Designated or

particular question.
Refusal to produce docs/ submit into
physical or mental exam

The court may issue an order striking

out pleadings or parts thereof, or
staying further proceedings until the
order is obeyed, or dismissing the
action or proceeding or any part
thereof, or rendering a judgment by
default against the disobedient party
Refusal to be sworn as directed by the
court may be held in contempt of
court

If the party denies and swore , the

truth or genuineness of the facts/
docs, and later on was proved by the
other party to be otherwise,
- The court may order the former to
pay the expenses plus atty.s fees
incurred
for
proving
the
truthfulness of the facts/docs
Failure to attend depositions or to
serve answers to interrogatories (BQ)
(failure to answer in whole whole)
The court may:
- Strike out all or any part of the
pleading of that party or
- Dismiss the action or proceeding
- Enter a judgement by default
against that party
- Order him to pay reasonable
expenses incurred by the order

CHAPTER VIII
Trial, Demurer to evidence, and
Judgement

Trial
- Judicial examination and
determination of the issues
between the parties to the action
When is trial unnecessary?
-in civil cases, in any of the ff cases:
a. Pleadings of the parties
tender no issue. A

10

judgement on the pleadings

may be directed by the court
b. The pleadings, affidavits,
and depositions and other
papers, there is no genuine
issue, the court may render
a summary judgement
c. Parties have entered into an
amicable settlement or
compromise during the pretrial or during the trial
d. When it falls in summary
procedures
e. Parties agree in writing, upon
the facts involved in
litigation, and submit the
case for judgement on the
facts agreed upon, without
the need of presenting
evidence
Notice of trial
5 days from the entry of the case in
the trial calendar
Calendaring of case
Priority
- habeas corpus cases
- election case
- special civil actions
- on those required by law to be
preferred
Postponement on the ground of
evidence (BQ)
- Trial may be postponed on the
ground of absence of evidence
upon compliance with the following
a. Motion for postponement
b. The motion must be with an
affidavit showing the,
i.
Materiality or relevancy
of the evidence
ii.
The materiality or
relevancy of the
evidence
iii.
Due diligence has been
done to procure it
- But if the adverse party admits the
facts to be given in evidence
a. The trial shall not be postponed
b. Even if the former reserves the
right to the admissibility of the
evidence

Postponement not a matter of right

- Discretionary
Issues in trial
Those stated on the pretrial unless the
court directs for special reasons
Order of trial ( see codal. Rule 30)
Reopening of the case: introducing
further evidence
Conditions:
a. For good reasons
b. Such reasons are in furtherance of
justice

Rep vs Sandiganbayan

A partys declaration of the

completion of the presentation
of evidence prevents him from
introducing further evidence
But if rebuttal in Character or
where the evidence to be
presented is in the nature of
new evidence
- A partys right to introduce
further evidence must be
recognized
- Otherwise, the party
aggrieved may avail the
remedy of certiorari
Evidence in the nature f
rebuttal?
Lopez vs Liboro

After presenting direct

evidence
Parties are allowed to present
rebuttal evidence only
Gen rule- additional evidence
is allowed ;
a. When it is newly discovered
b. When it has been omitted
through inadvertence or
DEMURER
TO or
EVIDENCE
RULE 30
mistake
correct evidence
A motion to dismissal
- Upon the facts and the law the
plaintiff has not shown a right to
relief
Rule 16 vs rule 33

11
Rule 16
Filing,
Before
filing an answer
Many grounds
When
denied,
may still file an
answer
If granted, may
be
refiled
depending
on
the grounds
Note:
i.

ii.

Rule 33
Filing, After the
plaintiff rests its
case
One ground only
When
denied,
may
present
evidence
No refiling
-plaintiff
may
appeal on the
order of dismissal

Denial of a demurer is an interlocutory

order
Hence, it is not appealable
Remedy- Certiorari (GAD)

When will the defendant lose the right

to present evidence
- If the CA reverse the TCs decision
granting the demurer
- Hence, the case should not be
remanded to the TC
- CA shall decide on the evidence
presented by the plaintiff

Note:
Leave of court is only applicable in criminal cases

d. Evidence
must
have
been
considered by the tribunal in
deciding the case
e. Judgement must be in writing and
personally prepared by the judge
f. Judgement must state clearly the
facts and the laws on which it is
based, signed by the judge and
filed with the clerk of court

JUDGEMENT
Requisites of a valid judgement
a. The tribunal must be clothed with
authority to hear and determine
the matter before it
b. Must have jurisdiction over the
parties and SM
c. Parties
must
have
given
opportunity to adduce evidence in
their behalf

Rule 68 Foreclosure of Real Estate Mortgage:

Sec 1 Complaint
Shall set forth:
1. Date and due execution of the
mortgage
2. Assignments, if any
3. Names
and
residences
of
the
mortgagor and mortgages
4. Description of the mortgage property
5. Statement of