Professional Documents
Culture Documents
Riano :
Chapter VI
Proceedings after Summons and
Motion for Dismissal
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
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.
When to file?
-
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
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b. The court may then:
i.
Deny outright
ii.
Grant outright
iii.
Hold a hearing
MOTION TO DISMISS
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
Is
-
3
-
Note :
i.
ii.
iii.
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)
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
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
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-
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
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-
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
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Deposition de benne esse- for pending action
Deposition in perpetuam rei memoriampending appeal and future proceeding
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
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
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
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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
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
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Rep vs Sandiganbayan
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
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