FREQUENT

AREAS OF CONCERN/UPDATES and REMINDERS IN CIVIL PROCEDURE

1) Motion to Dismiss (Rule 16)

-“Lack of Cause of Action” and “ Failure to State a Cause of Action” sadly
interchanged.

- Paragraph g of Rule 16 of the Rules of Court states: “ That the pleading asserting
the claim states no cause of action”

-Distinctions:

1) Lack of Cause of action not a ground; available only after stipulations of facts,
admissions or presentation of evidence by the plaintiff or claimant;
Evidence does not prove the existence of a cause of action

2) Failure to State a Cause of Action is expressly mentioned in the Rules; occurs
when there is insufficiency in the allegations in the Complaint

( Westmont Bank vs. Funal Philippines Corporation, G.R. No. 17533, July 8, 2015;
Leticia Naguit Aquino vs. Cesar B. Quiason, G.R. No. 201248, March 11, 2015)

2) Preliminary Hearing on the Affirmative Defense ( Section 6, Rule 16)

- Based on practicality but discretionary on the part of the court;
- Usual affirmative defenses are payment, abandonment, waiver,
prescription, litis pendentia, res judicata and lack of jurisdiction over the
case or person of the defendant.

- Preliminary Hearing is improper unnecessary or improvident when the
affirmative defense is “failure to state a cause of action” because the Court
cannot consider external facts.
- Motion to Dismiss and Motion for Preliminary Hearing on the Affirmative
Defense are procedural options which are not mutually exclusive of each
other ( Associated Bank vs. Spouses Francisco, G.R. No. 186979, August 10,
2010).
- It is also an error on the part of the court to hold preliminary hearing to
determine the existence of external facts outside the Complaint (id)
- May a Preliminary Hearing be made even if the parties have already began
presenting their evidence? Yes, even after the lapse of one year from the
 filing of the Answer.( Exxon Mobil Petroleum vs. CIR, G.R. No. 180909,
January 19, 2011)

3) Pre- Trial
- used to be discretionary but now mandatory at all times; it is not a mere
technicality that can be taken for granted;
- cannot be dispensed with after summary hearing on the application for
WPI; it is mandatory to conduct Pre- trial in order to realize the paramount
objective of SAE ( Dr. Emmanuel Vera vs. Ernesto Rigor and the CA, August
10, 2007). A WPI is generally based solely on initial and incomplete
evidence. The evidence here is not conclusive or complete for only a
sampling of such evidence is needed to give the court an idea of the
justification for the issuance of the writ ( Zuneca Pharmaceutical vs.
Natrapharm Inc., G.R. No. 197802, November 11, 2015).


4) Indigency Test
- Rooted in the Constitution ( “Access to Justice”)

- Sec. 21, Rule 3 of the Rules of Court:
“ A party may be authorized to litigate his action, claim or defense as an
indigent if the court, upon an ex parte application or hearing, is satisfied
that the party is one who has no money or property sufficient and
available
for food, shelter and basic necessities for himself and his family ”.

Section 19, Rule 41 as amended by A.M. No. 002-01- SC and A.M. No.
04-02-04 SC, however reads:
“Indigent Litigants exempt from payment of legal fees—Indigent
litigants a) whose gross income and that of their immediate family do
not exceed an amount double the monthly minimum wage of an
employee and b) who do not own real property with a fair market
declaration of more than PHP 300, 000.00 shall be exempt from the
payment of legal fees.”

May the foregoing provisions be reconciled?
Yes. In resolving the issue, the Supreme Court cited the case of Spouses
Algura vs. Local Government of the City of Naga in this manner:
When an application to litigate as an indigent is filed, the Court shall
scrutinize the Affidavits and supporting documents submitted by the
applicant to determine if there is compliance with the property and
income requirements under Section 19 of Rule 41. If the trial court
 meets the income requirement, then it proceeds to grant the authority
to litigate as an indigent litigant.

However, if the court finds that one or both requirements have not
been met, then it would set a hearing to enable the applicant to prove
that he has no money or property sufficient for food, shelter and basic
necessities for himself and his family. In that same hearing, the adverse
party may adduce countervailing evidence.

Note that any falsity in the Affidavit of the litigant or the disinterested
person shall be sufficient cause to dismiss the complaint or action or to
strike out the pleading of that party, without prejudice to whatever
criminal liability may have been incurred.

-Issuance of a writ of execution,exception to Rule 39.



5) Attachment
-discharge can be effected by any of the following:
a)posting of counter-bond ( cash or surety);
b)improper or improvident issuance of the writ;
c)attachment bond is insufficient;
d) attachment bond is excessive.

- dissolution of the preliminary attachment does not result in the dissolution of the
attachment bond ( Phil-Air Conditioning Center vs. RCJ Lines and Rolando Abadilla,
Jr., G.R. No. 193821, November 23,2015)


6) Modes of Discovery (DIAPP)

-Through written interrogatories, a party may elicit from the adverse party facts or
matter that are relevant to the subject of the pending action. Like all the other modes of
discovery, the purpose of written interrogatories is to assist the parties in clarifying the
issues and in ascertaining the facts. On the other hand, the provision on Production and
Inspection of documents is intended not only to assist the parties but likewise to enable
the court to discover all the relevant and material facts in connection with the pending
subject matter ( Philhealth Insurance vs. Our Lady of Lourdes Hospital, G.R. No. 193158,
November 11, 2015).

 -Written Interrogatories vis-à-vis the Judicial Affidavit Rule; submission of written
interrogatories a must ( Afulugencia vs. Metrobank, G.R.NO. 185145, February 5, 2014). A
party not served with written interrogatories may not be compelled t to give testimony in
open court, or give deposition pending appeal (id). This could be relaxed , however, by
good cause and to prevent failure of justice. ( Ng Meng Tam vs. Chinabank, G.R.No.
214054, August 5, 2015).

7) Deposition in a Civil case/ Conditional Examination or Deposition in a Criminal

Case ( People vs. Harry Go reiterating People vs Risos Vda De Manguerra, G.R.No.
185527, July 18,2012.

- Deposition in civil cases maybe conducted anywhere outside the court handling the case,
but not in criminal cases. The right to confrontation is a constitutional right that cannot be
taken away from the accused. The taking of deposition must be conducted only before the
court where the criminal case is pending.

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