RULE 12 BILL OF PARTICULARS

Definition A bill of particulars is a more definite statement of any matter which is

not averred with sufficient definiteness or particularity in a pleading so as to enable
the opposing party to prepare his responsive pleading.
Purpose :
Accdg to SC : the primary purpose of the bill of particulars is to apprise the
adverse party of what a plaintiff wants
Points out defects complained of; the paragraphs where they are contained
and details desired
Enable defending party to properly prepare his responsive pleading
When and Why file A Bill Of Particulars?
If the allegations of ultimate facts in the complaint are vague and ambiguous
that the defendant will have difficulty in preparing his answer.
-You cannot use BOP for fishing of evidentiary matters.
- Evidentiary facts cannot be the subject of a motion for a bill of particulars
- A defendant can file a motion for bill of particulars to clarify and vice versa
- A motion for BOP is also available in criminal cases
Evidentiary Facts Facts which will prove the ultimate facts. They should not be
stated in the pleading. They should be brought out during the trial. They are proper
during the trial but they have no place in the pleadings
Ultimate Facts
-

may be filed through either a separate or an amended pleading

may be granted in whole or in part as not all the allegations questioned by the
movant are necessarily so ambiguous as to require clarification

Sec 5-6
-

A motion for a bill of particulars must be filed within the reglementary period
for the filing of a responsive pleading sought to be clarified.
A motion for a bill of particulars directed to a reply must be filed within 10
days, since a responsive pleading is not required for a reply as, in fact, the
filing of the reply itself is optional or permissive.
Thus, after the reply, there can be a rejoinder with a sur-rejoinder and then a
rebutter with a sur-rebutter. If these subsequent pleading are allowed by the
court, as responsive pleadings which are not required but at least authorized,
then it would be logical for it to fix a period for the filing of a motion for a bill
of particulars whenever the same is necessary to make more definite the
allegations in said pleading.
The filing of a motion for a bill of particulars interrupts the time to plead, but
only if it is sufficient in form and substance.

GALANZA, F.

CIVPRO

RIANO, REGALADO, LAKAS

The motion must comply with Secs. 4 and 5, Rule 15 on the service and
contents of the notice of motions
If the motion is granted, the movant can wait until the bill of particulars is
served on him by the opposing party and then he will have the balance of the
reglementary period within which to file his responsive pleading.
If the motion is denied - he will still have such balance of the reglementary
period to do so, counted from the service of the order denying his motion
In either case he will have at least 5 days to file his responsive pleading.

RULE 13 FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND OTHER

PAPERS
Sec 2. Filing and Service defined
FILING is the act of presenting the pleading or other paper to the clerk of court
- directed to the court
SERVICE is the act of providing a party with a copy of the pleading or paper
concerned. Or if he is represented by a lawyer, a copy of the pleading must be
furnished to the lawyer.
- directed to a party
Q : Why service upon the lawyer is required if the party is so represented?
A: To do away with subsequent objection which the party served may raise to the
effect that he knows nothing about court procedure and also to maintain a uniform
procedure calculated to place in competent hands the orderly prosecution of partys
case.
-

SERVICE TO A LAWYER BINDS THE CLIENT AND NOT THE OTHER WAY AROUND.

Notice to the lawyer who appears to have been unconscionably irresponsible

cannot be considered as notice to his client

Notice given to a party who is duly represented by counsel is a nullity unless

service thereof on the party himself was ordered by the court of the technical
defect was waived.

Where one counsel appears for several parties, he shall only be entitled to one
copy of any paper served upon him by the opposite side.

But if 5 defendants are represented by different lawyers, each and every

lawyer has to be furnished a copy

Sec. 3
- The clerk shall keep a general docket, each page of which shall be numbered and
prepared for receiving all the entries in a single case and shall enter therein all cases
GALANZA, F.

CIVPRO

RIANO, REGALADO, LAKAS

2 MODES OF FILING
1. Personal Filing
- done personally to the clerk of court
- You go to the court and the court will mark it RECEIVED, then it is deemed
filed
2. Filing by Registered Mail
Importance : the date of filing is the date of mailing
- the date on the envelope is officially the date of filing (Post Office)
- (thru LBC or JRS) considered as personal filing and the pleading is not
deemed filed until the court itself receives it
- the post office is automatically a representative of the court for the purpose of
filing
- the law treats the messengerial company only as your process helper
SEC. 4
SEC. 5
- pleadings may also be effected by substituted service
- judgments, final orders or resolutions may be served by publication ( only
proper where the summons on the defendant had also been served by
publication )
HOW DO YOU SERVE A PLEADING TO THE OPPOSITE PARTY ?
Either by :
1. personally;
2. by mail; or
3. Substituted service under Section 8 in case of failure of the personal service or
by registered mail
SEC.
HOW
-

6 PERSONAL SERVICE
SERVED?
not represented by a counsel - by delivering it personally to the party if he is
if represented to his counsel (you may leave it to his office with the clerk or
any person charged thereof
- if not served on either, service should be made not only on a person of
sufficient discretion but likewise of sufficient age and who must further be
actually residing therein
- age requirement intended to make it easier to ascertain whether the person
to whom the pleading was entrusted is one with sufficient discretion
- requirement of residency to obviate the possibility or the pretext that service
was made only on a visitor or any person who happened to be in the residence
for a transient or temporary purpose

WHEN IS A PERSONAL SERVICE COMPLETE? UPON ACTUAL DELIVERY

SEC. 7 SERVICE BY MAIL (2ND MODE OF SERVICE OF PLEADINGS)
GALANZA, F.

CIVPRO

RIANO, REGALADO, LAKAS

if no registry service is available in the locality of either the sender or the

addressee, service may be done by ordinary mail
Service by ordinary mail may be allowed for purposes of service
The law does not recognize ordinary mail for purposes of filing such would
be treated as personal filing
In registered mail, the date of receipt is considered the date of filing not the
date of mailing.

SEC. 8 - SUBSTITUTED SERVICE

- serving a copy to the clerk of court with proof of failure of personal an mailing
service
- By fiction of law, the adverse party has already been served
SEC. 9 SERVICE OF JUDGMENTS, FINAL ORDERS OR RESOLUTIONS
3 MODES OF SERVING COURT ORDERS OR JUDGMENTS TO PARTIES :
1. Personally
2. By registered Mail
3. Service by Publication
- court orders or judgment orders have to be served also, either personally or by
registered mail
Regalado :
- A judgment or final order served by ordinary mail does not become executor
since the service is fatally defective
- Mere notation in the rollo that a copy of the resolution was sent to the counsel,
absent a showing of receipt does not constitute proof of service
- For constructive service by registered mail, there must be conclusive proof
that a first notice by the postmaster to the addressee was received. The
presumption that official duty has been performed does not apply.
- If however the postmaster certifies that such notice was sent, the presumption
arises and overrides the contrary claim of the addressee
- In case the addressee was unlocated there is no substituted service
- Judgments, final orders, or final resolutions cannot be served by substituted
service
- If counsel is dead or has permanently left the country and withdrawn from the
case without a substitute counsel and the party represented by him cannot be
found - service of the judgment by publication is not authorized and would not
be valid. SOLUTION : authorize trial court to effect service of the judgment by
publication, otherwise entry and execution of that judgment would be void.
- Under service by publication only the dispositive portion or the fallo should
be required to be published and not the entire text of the decision or
resolution which may be voluminous and will entail substantial publication
expenses
GALANZA, F.

CIVPRO

RIANO, REGALADO, LAKAS

SEC. 10 COMPLETENESS OF SERVICE

-

CONSTRUCTIVE SERVICE
Failure of petitioners to claim a copy of the resolution denying due course to
their petition within 5 days from notice, service became effective after the
five-day period and the finality of said resolution is reckoned therefrom
A party or a lawyer cannot defeat the process of the law by simply not
claiming his mail.
You can be bound by a decision which you never read.

SEC. 11 PRIORITIES IN MODES OF SERVICE AND FILING

- Personal service is preferred to mail. Personal service is prioritized
- If you served the opposing counsel by mail the law requires that you give an
explanation why you resorted to mail and not to personal service
- If you file it without any explanation violation of the rule, causing to consider
the paper as not filed.
- Only applies to lawyers and parties.
- Whenever practicable, the service and filing of pleadings and other papers
shall be done personally EXCEPT WITH RESPECT TO PAPERS EMANATING FROM
COURT.
- An affidavit of service accompanied in the petition is not substantial
compliance with the requirement in Sec. 11.
- An affidavit of service is required merely as proof that service has been made
to the other parties in the case. It does not explain why alternative modes of
service other than personal service were resorted to.
SEC. 12
SEC. 13 PROOF OF SERVICE
PROOF OF PERSONAL SERVICE
Through the admission of the party served as admitted that he had been
furnished with a copy.
File the affidavit of your employee, or messenger, that he served the copy in
the office of so and so containing full statement of facts
Or the official return of the server
PROOF OF SERVICE BY ORDINARY MAIL
- consists of an affidavit of the person mailing of facts showing compliance with
Sec. 7
PROOF OF SERVICE BY REGISTERED MAIL
- Proof shall consist of the affidavit of the mailer and the registry receipt issued
by the mailing office.
- The registry return card shall be filed immediately upon its receipt by the
sender. Or, in lieu thereof, of the unclaimed letter together with the certified or
sworn copy of the notice given by the postmaster that is a constructive
service.
GALANZA, F.

CIVPRO

RIANO, REGALADO, LAKAS

CONSTRUCTIVE SERVICE
- if the registered mail was not received
- it is deemed served upon the expiration of so many days
- What you will file in court is the unclaimed letter together with a certified or
sworn copy of the notice given by the postmaster to the addressee
SEC. 14 NOTICE OF LIS PENDENS
Lis pendens a pending suit or litigation
NOTICE OF LIS PENDENS notice of pending action or litigation
- An announcement to the whole world that a particular real property is in
litigation, serving as a warning that one who acquires an interest over the said
property does so at his own risk
- Proper only where there is an action or proceeding in court which affects the
title to or possession of real property

Regalado :
- A notice of lis pendens, may be recorded at the instance of the interested
party at anytime during the pendency of the action and not necessarily at the
time of the filing of the complaint or the answer of the party concerned
- Intends to protect the real rights of the party who caused the registration
thereof
- Serves as a warning to prospective encumbrancers or purchasers that they
should keep their hands off the property unless they wish to gamble on the
result of the litigation involving the same
- The party who had the notice annotated and who won the litigation over the
property has the better right as against one who bought it with such
annotation
How cancelled?
- cannot be removed without the order from the court
- generally the court cannot issue the order until the case is finished or until the
final issue of the case is determined
- Regalado : A notice of lis pendens cannot be ordered to be cancelled on an ex
parte motion. There should be notice to the party who caused such notice to
be recorded so that he may be heard to show to the court that the notice of lis
pendens is necessary to protect his rights and is not for the purpose of
molesting the adverse party; cannot be cancelled by filing of a bond
Essence of Notice of Lis pendens
- a notice against the whole world against sale or mortgage of the property
under litigation and whoever deals with it is accepting the risk
- One cannot claim that he is the mortgagee or buyer in good faith because
there is a notice
GALANZA, F.

CIVPRO

RIANO, REGALADO, LAKAS

GENERAL RULE : the one who registers a notice of lis pendens is the plaintiff
EXCEPTION :
- A defendant may register normally when there is a counterclaim
RULE 14 SUMMONS
SEC. 1. CLERK TO ISSUE SUMMONS
SUMMONS a writ by which a defendant is notified of the action brought against him
Purpose : it is the means by which the court acquires jurisdiction over the
defendants person
- Summons is the counterpart of warrant of arrest in criminal cases
RULE 15 MOTIONS
SEC. 1 MOTION DEFINED
-

A motion is an application for relief other than by a pleading

The party is asking the court for a favor other than what is contained in the
pleading
Usually the main relief is prayed for in the pleading
In a motion, you are asking for another relief other than the main cause of
action or the main defense

3 WELL KNOWN EXCEPTION TO SEC. 1

a. Motion for Judgment to the Demurrer to Evidence
b. Motion for Judgment on the Pleadings
c. Motion for Summary Judgment
REQUISITES OF A VALID MOTION
a. It must be in writing except those made in open court or in the course of
hearing or trial;
b. It sha;; state the relief sought to be obtained and the ground upon which it is
based
c. It must be accompanied by supporting affidavits and other papers, if required
by these Rules or necessary to prove facts alleged therein. However, if the
facts are already stated on record, the court can check the records;
d. There must be a notice of the hearing attached to the motion and the adverse
party must receive the motion at least 3 days before the date of hearing,
unless the court for good cause sets the hearing on shorter notice
e. There must be notice of hearing addressed to all parties concerned and shall
specify the time and date of the hearing which must not be later than 10 days
after the filing of the motion
f. There must be proof of service of the motion on the adverse party
SEC. 2. MOTIONS MUST BE IN WRITING
GALANZA, F.

CIVPRO

RIANO, REGALADO, LAKAS

GR : All motions must be in writing

EXC : Those made in open court or in the course of a hearing or trial
SEC. 3. CONTENTS
-

A motion shall state the relief sought to be obtained and the grounds upon
which it is based
i.e. You move to postpone the trial next week because your client is still
abroad, you have to cite the grounds upon which it is based
if it is necessary to prove the facts alleged therein, then, the motion must be
accompanied by affidavit and other supporting papers, unless not required

SEC 4. HEARING OF MOTION

GENERAL RULE : One must furnish the adverse party a copy of your motion at least
three days before the date of hearing
Ratio : To prevent surprise upon the adverse party and to enable the latter to study
the motion and file his opposition
*A motion cannot be filed ex-parte Without notice of hearing and without
furnishing a copy to the opponent.
EXC:
a. Controversial Motion motions which the court may act upon without prejudicing
the rights of the adverse party
REGALADO :
EXCEPTIONS TO THE 3 DAY NOTICE RULE
a. ex parte motions
b. urgent motions
c. motions agreed upon by parties to be heard on shorter notice or jointly
submitted by the parties
d. motions for summary judgment which must be served at least 10 days before
its hearing
General Rule : All written motions shall e set for hearing, even if, that hearing may
be conducted on less than 3 days advance notice.
Except : Non- litigable or non-litigated motions, meaning those which may be acted
upon by the court without prejudicing the rights of the adverse party
-

Test : presence of the opportunity to be heard, as well as to have time to study

the motion and meaningfully oppose or controvert the grounds upon which it
is based.
Reasons which would warrant the suspension of the Rules
a. Existence of special or compelling circumstances
b. Merits of the case
c. A cause not entirely attributable to the fault or negligence of the party
favored by the suspension of rules

GALANZA, F.

CIVPRO

RIANO, REGALADO, LAKAS

d. A lack of any showing that the review sought is merely frivolous and
dilatory
e. The other party will not be unjustly prejudiced thereby
-Effect if a party files a motion serving upon the adverse party in less than 3 days?
The court may refuse to take action on a motion which does not comply with the
rule requiring a 3-day notice, unless the court for good cause sets the hearing on a
shorter notice
SEC. 5 NOTICE OF HEARING
EFFECT OF LACK OF NOTICE AND HEARING
- A motion that does not contain a notice of hearing is but a mere scrap of
paper; it presents no question which merits the attention and consideration of
the court
- It is not even a motion for it does not comply with the rules
- A motion without notice of hearing is nothing but a piece of paper filed in
court, which should be disregarded and ignored
-

Should be addressed to all parties concerned. Not to the clerk of court

Must not be later than 10 days after the filing of the motion

SEC. 6 PROOF OF SERVICE NECESSARY

PROOF OF SERVICE OF THE MOTION IS REQUIRED
- No written motion set for hearing shall be acted upon by the court without
proof of service hereof
- You cannot file anything in court without furnishing a copy to your opponent
- A motion cannot be filed ex-parte
- ONLY EXCEPTION - motions which can be filed ex-parte because they are not
controversial
SEC. 7 MOTION DAY
-

Friday afternoons
Except those motions which require urgent action

SEC. 8. OMNIBUS MOTION RULE

OMNIBUS all embracing or all encompassing
OMNIBUS MOTION
- An omnibus motion is one attacking a pleading, order, judgment or a
proceeding which shall include all objections then available and objections not
so included shall be deemed waived.
- Principle : If you have 2 or more grounds, you should only file on motion where
you invoke all your grounds
GALANZA, F.

CIVPRO

RIANO, REGALADO, LAKAS

Exc: Rule 9, Sec 1 these are not deemed waived even if you do not raise
them in a motion to dismiss, which can be even motu propio proceeded by the
court
1. Lack of jurisdiction over the subject matter
2. Litis pendentia
3. Res judicata
4. Prescription

SEC. 9 MOTION FOR LEAVE. A motion for leave to file a pleading or motion shall be
accompanied by the pleading or motion sought to be admitted
-

When you file a motion, the pleading to be admitted must already be included
in your motion
Filing of the motion includes the filing of the pleading (one time filing)
The pleading sought to be amended must already be included in the motion

SEC 10. FORM

- The rules on pleading also applies to written motions as far as caption,
designation, signature and other matters of court are concerned.
RULE 16. MOTION TO DISMISS
SEC. 1.
RULE 20 - CALENDAR OF CASES
-

To ensure a more efficient monitoring of cases for both supervision and

reportorial purposes, the clerk of court is now required to keep at least four
separate calendars reflecting the cases for:
a. pre-trial
b. trial
c. those whose trials were adjourned and postponed
d. and those requested to be set for hearing

The assignment of cases is required to be done exclusively by RAFFLE

Raffle of the cases shall be done in open sessions with prior adequate notice
to the interested parties

GALANZA, F.

CIVPRO

RIANO, REGALADO, LAKAS