REMEDIAL LAW | Civil Procedure | Prof.
Tranquil Gervacio Salvador III
REMEDIAL LAW
Civil Procedure
Prof. Tranquil Gervacio Salvador III
FILING FEES
The Court acquires jurisdiction over any case only upon the
payment of the prescribed docket fee.
Sun Insurance v. Asuncion (1989)
1. It is not simply the filing of the complaint but the
payment of the prescribed docket fee, that vests a
trial court with jurisdiction over the subject matter
or nature of action. Where such filing is not
accompanied by payment of the docket fee, the
court may allow payment of the fee within a
reasonable time but not beyond the prescriptive
period.
2. Same rule applies to permissive counterclaims, 3rd
party claims and similar pleadings. The court may
allow payment of said fee within a reasonable time
but in no case beyond its applicable reglementary
period.
3. Where the trial court acquires jurisdiction over a
claim by the filing of the appropriate pleading and
payment of the prescribed filing fee but
subsequently, the judgment awards a claim not
specified in the pleading, or if specified the same
has been left for determination by the court, the
additional filing fee therefor shall constitute a lien on
the judgment. It shall be the responsibility of the
Clerk of Court or his duly authorized deputy to
enforce said lien and assess and collect the
additional fee.
a. “Metered” filing fees.
CAUSE OF ACTION
DEFINITION: Act or omission by which a party violates
the rights of another.
THREE REQUISITES:
1. Legal right in favor of the plaintiff
2. Correlative legal duty of the defendant to respect
such rights
3. Act or omission by such defendant in violation of
the right of the plaintiff with a resulting injury or
damage to the plaintiff for which the latter may
maintain an action for the recovery of relief from the
defendant.
There is a cause of action when someone violates the right
of another.
Most important requisite: Breach.
The causes of action is determined in terms of the number
of breaches.
Will every breach entitle you to recovery?
Turner v. Lorenzo Shipping (2010)
A complaint whose cause of action has not yet accrued
cannot be cured by an amended or supplemental pleading
alleging the existence or accrual of a cause of action during
the pendency of the action. At that point in time, it was
premature.
• Now reinforced in Rule 10, Section 3 of the
amended rules.
Splitting causes of action
One suit for a single cause of action.
SPLITTING (A SINGLE CAUSE OF ACTION) – act of
instituting two or more suits on the basis of the same cause
of action.
The filing of one or a judgment upon the merits in any one
is available as ground for dismissal of the others à The filing
of one or a judgment upon the merits in any one is available
as ground for dismissal of the others. (Forum shopping)
• Filing of one: Litis pendentia;
• Judgment: Res judicata.
It is not a ground for a motion to dismiss. The proper
ground is litis pendentia or res judicata. But splitting can be
an affirmative defense.
Cruz v. Tolentino (2018)
The sole issue is the validity of the sale. There is litis
pendentia in this case. Res judicata applies as well.
Chua v. Metropolitan Bank (2009)
Forum shopping can be committed in three ways:
1. Filing multiple cases based on the same cause of
action and with the same prayer, the previous case
not having been resolved yet (where the ground for
dismissal is litis pendentia;
2. Filing multiple cases based on the same cause of
action and the same prayer, the previous case
having been finally resolved (where the ground for
dismissal is res judicata); and
3. Filing multiple cases based on the same cause of
action, but with different prayers (splitting of causes
of action, where the ground for dismissal is also
either litis pendentia or res judicata).
Joinder
JOINDER – assertion of as many causes of action as a
party may have against another in one pleading alone.
• Not mandatory, left to sound discretion of plaintiff.
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If it a suit of one party against another, you can join as many

causes of action, even if it is unrelated. Who may file suit? Who are we filing against?
a. An individual;
But if multiple parties, then you would have to contend with i. Must have capacity to sue and be
Section 6, Rule 3 or permissive joinder of parties. sued.
ii. Minor may be sued but must be
Actions covered by special rules cannot be joined. assisted by parent or guardian, or
• E.g. Adoption and ejectment cannot be joined. a guardian ad litem appointed by
the court.
RULES ON JOINDER OF PARTIES: (RULE 3, SECTION iii. In case of “supervening
6; Pantranco North Express v. Standard Insurance incapacity” (e.g. stroke) à case
Company) shall still continue, it may be
1. Right to relief arises out of the same transaction or continued with the assistance of
series of transactions the parent or the guardian.
2. There is a question of law or fact common to all [Section 18, Rule 3]
plaintiffs or defendants iv. A married person may institute an
3. Such joinder is not otherwise proscribed by the action. General rule is that it must
provisions of the Rules on jurisdiction and venue be instituted jointly with the
spouse. Except instances
ALTERNATIVE CAUSES OF ACTION: when causes of provided for by law.
action are set forth in one pleading alternatively or 1. Involving practice of
hypothetically. Plaintiff seeks relief from either one of the profession.
causes, not both (ROC, Rule 8, Section 2) 2. Involving properties
exclusively owned by one
Sum of all claims: If claim is for sum of money, jurisdiction spouse.
is determined by the sum of all your claims. v. Each of the spouses have to be
served with summons individually,
Misjoinder according to the amendments.
It is not a ground for dismissal. b. A juridical entity (e.g. corporations,
associations, duly incorporated in the
REMEDY IN MISJOINDER: When there is a misjoinder of Philippines or in the country where it was
causes of action, the erroneously joined cause of action can formed)
be severed and proceeded with separately upon motion by i. The capacity of the juridical entity
a party or by the court motu proprio. must also be stated in the
pleading, that it is duly organized
Prof. Tranquil cautions against this. and registered under Philippine
laws.
It can be initiated by the motion of a party or the court’s ii. Rule 14 distinguishes domestic
own motion because certain parties have been misjoined. vs. foreign corporation for
What is not contemplated is a situation where a party has purposes of summons.
failed to implied another. iii. A corporation doing business in
the Philippines and licensed can
sue and be sued.
PARTIES iv. A corporation doing business in
the Philippines but not licensed
REAL PARTY-IN-INTEREST – Party who stands to be under the Philippines generally
benefited or injured by the judgment in the suit, or party cannot sue but it can be sued.
entitled to the avails of the suit. [Section 2, Rule 3] However, an exception is when
the defendant benefited from the
LEGAL STANDING or DOCTRINE OF LOCUS STANDI plaintiff, then he is estopped from
• Refers to a personal and substantial interest in a denying the same.
case such that the party has sustained or will v. Isolated transactions: The foreign
sustain a direct injury because of the challenged company may be sued against.
governmental act. c. Entities authorized by law
• Simplest test: Direct injury. But the test has evolved i. No need for licensing requirement
through time. or registration.
• Transcendental importance allows a party to file
suit even without direct and personal injury.
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ii. Example would be labor
organizations accredited by the
government.
d. Non-juridical entities
i. Cannot sue but can be
defendants to an action for the
protection of the public.
ii. May be sued under the name by
which they are commonly known.
iii. But once you receive summons
and you have to file an answer,
you would have to disclose true
names.
Necessary party
NECSSARY PARTIES – one who is not indispensable but
who ought to be joined as party to the case if (1) complete
relief is to be accorded as to those already parties, or (2) for
a complete determination or settlement of the claim subject
of the action.
Non-inclusion does not prevent the court from proceeding
with the action.
Failure to implead necessary party does not affect the
validity of a judgment.
Indispensable party
Needs to be impleaded to have a final determination in a
case.
INDISPENSABLE PARTY – real party in interest without
whom no final determination can be had of an action.
The policy of the court today is when the party calls the
attention of the court on failure to implead an indispensable
party, the court orders to implead an indispensable party,
instead of dismissing it outright. If after, there is failure to
comply, only then will the court dismiss the case.
If the action proceeded and judgment was had, and there
was failure to implead an indispensable party, such is null
and void.
In an action for petition for relief of judgment, a party to an
action is an indispensable party. You should be a party to
an action to institute a suit under Rule 38.
Derivative suit: A wrong is committed against a
corporation. Therefore, the cause of action belongs to a
corporation and it must be impleaded. The stockholder who
instituted an action is deemed to have failed an
indispensable party if he does not implead the corporation.
[Cua v. Ocampo Tan (2009)]
Class suit
There is a common or general interest. [Section 12, Rule 3]
REQUISITES FOR A CLASS SUIT TO PROSPER:
1. Persons are so numerous that it is impracticable to
join all as parties
2. Subject matter of the controversy must be of
common or general interest to many persons
3. Parties actually before the court are sufficiently
numerous and representative as to fully protect the
interest of all concerned
4. Representatives sue or defend for the benefit of all
Once there is diversity, there cannot be a class suit.
Substitution (Effect of death of party litigant)
What if a party dies? Section 16, Rule 3 cf. Section 4, Rule
111.
Requirement:
1. Any party dies;
2. Nature of the action is that which survives as to the
death of the party. Examples:
a. Specific performance with damages;
b. Recovery of ownership or possession;
c. Rescission of contract
d. Sum of money
i. Plaintiff dies à Section 20 will not
apply.
The case will not be dismissed, and substitution of the
deceased party takes palce.
HOW EFFECTED: Duty of the lawyer to inform the court
within 30 days from the fact of death. The lawyer also has
to notify the court of the legal representative.
1. E.g. Name an heir, executor, or administrator
Two notices:
1. Notice of death given by the lawyer to the court;
2. Court has to issue a notice of the substitution.
Lack of any of this will not result in substitution. However,
the Court has previously ruled that there is substitution in
cases where the party has participated, as long as the
minimum requirements of due process have been complied
with. Substitution is a requirement of due process.
Brioso v. Mariano (2003)
Despite the trial court's failure to adhere to the rule on
substitution of a deceased party, its judgment remains valid
and binding on the following heirs, namely, Salvador,
Concepcion and Ernesto. Formal substitution of heirs is not
necessary when the heirs themselves voluntarily appeared,
shared in the case and presented evidence in defense of
deceased defendant. This is precisely because, despite the
court's non-compliance with the rule on substitution, the
heirs' right to due process was obviously not impaired. In
other words, the purpose of the rule on substitution of a
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deceased party was already achieved. The following facts
indicate plainly that there was active participation of these
heirs in the defense of Glicerio after his death. As to the
father of the heirs, and since no one came forward to
protect his interest, the judgment was void since there was
no valid substitution.
Public officer dies, resigns, ceases office
When a public officer is a party in an action in his official
capacity and during its pendency dies, resigns, or otherwise
ceases to hold office, the action may be continued and
maintained by or against his successor. [Section 17, Rule
3]
Grounds: Substantial need for continuing or maintaining it
and that the successor adopts or continues or threatens to
adopt or continue the action of his predecessor.
• When shown to court: Within 30 days after
successor takes office.
There should be sufficient notice and opportunity to be
heard. (For successor)
Transfer of interest
In case of any transfer of interest, the action may be
continued by or against the original party, unless the court
upon motion directs the person to whom the interest is
transferred to be substituted in the action or joined with the
original party. [Section 19, Rule 3]
Action on money or interest
This has a very narrow application.
Requisites for application of Section 20, Rule 3:
1. Nature of the action is for recovery of money arising
from contract, express or implied
2. It is the defendant who dies
a. If plaintiff dies à Section 16 applies.
Court shall NOT DISMISS the suit. Case shall continue until
entry of final judgment.
• However, unlike in Section 16 where the action will
survive because of substitution, in Section 20, the
action will continue against the estate.
VENUE
Venue is not jurisdiction.
Two rules:
1. Real action: Venue is determined where the real
property is located.
a. Can the parties stipulate on venue? YES.
The concept of venue in civil cases could
be subject of consent, agreement, or
waiver. See Section 4, Rule 4.
2. Personal action: Venue is transitory, thus, it is
either:
a. Where the plaintiff or any of the principal
plaintiff resides
b. Where the defendant or any of the
principal defendants resides
c. If non-resident defendant, the plaintiff can
elect whether:
i. Where the plaintiff or principal
plaintiff resides;
ii. where NR defendant may be
found. (cf. Rule 14 on service of
summons)
d. If corporation à place of business as
indicated in the Articles of Incorporation.
e. Can venue in personal actions be subject
of agreement? YES. If there are no words
of exclusivity, it is merely an additional
option. But if there are words of exclusivity,
then venue is what the parties agreed
upon.
f. In personal actions, the option is on the
plaintiff.
The venue stipulation cannot be applied where the validity
of the contract is put in question.
Residence – means the place of abode, permanent or
temporary, of the plaintiff or defendant.
“Principal” under the Rules should be taken to mean that
the party should have substantial interest.
• Prof. Tranquil: Because some lawyers practice
impleading “nominal” parties which only have minor
interests in the case to manipulate the rules on
venue.
Improper venue is no longer a ground for motion to dismiss.
If you fail to raise the defense of improper in an Answer, it is
deemed waived.
Hygienic Packaging Corp v. Nutriasia Inc. (2019)
This is a personal action, as it is for recovery of sum of
money. Petitioner's erroneous belief on the applicability of
the venue stipulation in the Sales Invoices led it to file an
action before the Regional Trial Court of Manila. This error
is fatal to petitioner's case. They cannot be considered as
contracts that would bind the parties as to the venue. At the
very least, the sales invoice is just an acknowledgment of
receipt.
WHEN RULE 4 DOES NOT APPLY:
1. When there is a law that expressly provides for a
venue;
a. Rule 24: Deposition Before Action. Where
the would-be defendant resides.
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b. Probate of the will or distribution of the
estate à where the deceased last resided.
c. Quo warranto à Where the respondent or
any of them resides.
d. Adoption à Where adopted resides.
2. When the parties stipulate on a venue with words
of exclusivity.
SMALL CLAIMS
SCOPE: Actions for payment of money where the value of
the claim does not exceed PHP 400,000 in cases filed
before the MeTC, and P300,000 in cases filed before the
MCTC, MTCS, and MTCC, exclusive of interest and costs.
It is initiated by the Statement of Claim.
• There must be a Certification Against Forum
Shopping, Splitting a Single Cause of Action, and
Multiplicity of Suits.
Response: The only responsive pleading is a Response.
• Within 10 days from receipt of summons. [Section
13, AM 08-8-7-SC]
No participation on lawyers unless the lawyer is a party
himself.
FILING FEES: If more than five (5) small claims are filed by
one party within the calendar year, regardless of the judicial
station, an additional filing fee of P500.00 shall be paid for
every claim filed after the fifth (5th) claim, and an additional
P100.00 or a total of P600.00 for every claim filed after the
tenth (10th) claim, and another P100.00 or a total of P700
for every claim filed after the fifteenth (15th) claim,
progressively and cumulatively.
• If the plaintiff is engaged in the business of banking,
lending and similar activities, the amount of filing
and other legal fees shall be the same as those
applicable to cases filed under the regular rules.
[Section 10, AM 08-8-7-SC]
Decision: After the hearing, the court shall render its
decision based on the facts established by the evidence
within twenty-four (24) hours from termination of the
hearing. [Section 24, AM 08-8-7-SC]
PLEADINGS
PLEADINGS: The written statements of the respective
claims and defenses of the parties submitted to the court
for appropriate judgment.
Rule 8, Section 1 cf. Rule 7, Section 6: Rule 8, Section 1
tells us the amendment of a phrase changed the policy of
the Rules.
• Section 1 states that it should state a plain,
concise, direct statement of facts, including the
evidence of the claim or defense of a party.
• Section 6, Rule 7 instructs that the parties submit
the judicial affidavits of witnesses, name them, as
well as include the summaries of their testimonies.
Documents and object evidence have to be
attached to the complaint.
Actionable document: Document on which an action or
defense is based. (e.g. promissory note)
• Must be specifically denied. Effect of failure to
specifically deny it under oath is deemed an
admission of the document’s genuineness and due
execution.
• Window: Rule 129, Section 4 (Palpable mistake)
• Even if it is specifically denied but NOT under oath
à still an admission.
What do you do for an actionable document? You allege
the substance or attach a copy of the document.
• Whenever an action or defense is based upon a
written instrument or document, the substance of
such instrument or document shall be set forth in
the pleading, and the original or a copy thereof shall
be attached to the pleading as an exhibit, which
shall be deemed to be a part of the pleading.
[Section 7, Rule 8]
Answer
GR: The Answer should contain the defenses.
NEGATIVE DEFENSE: A defense is negative when its
purpose is to specifically deny the material averments in the
pleading of the claimant.
Manners of denial See Rule 8 Section 10
1. Specific denial
a. Defendant specifies each material
allegation of fact, the truth of which he
does not admit and whenever practicable,
sets forth the substance of the matters
upon which he relies to support his denial.
[Rule 8, Section 10]
2. “Qualified” denial – deny a portion and admit the
rest;
3. Lack of information to form a belief as to the truth
thereof.
a. “Moreover, respondents' denial of the
allegations in the petition for forfeiture "for
lack of knowledge or information sufficient
to form a belief as to the truth of the
allegations since respondents were not
privy to the transactions" was just a
pretense. Mrs. Marcos' privity to the
transactions was in fact evident from her
signatures on some of the vital documents
attached to the petition for forfeiture which
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Mrs. Marcos failed to specifically deny as

required by the rules.” Thus, there was no Reply
denial in this case and it was deemed an GR: A reply is not allowed by the Rules.
admission [Republic v. Sandiganbayan
(2003)] XPN: An answer may be responded to by a reply only if the
defending party attaches an actionable document to the
AFFIRMATIVE DEFENSES: An allegation of a new matter answer.
which, while hypothetically admitting the material • What if you want to allege new matters, and this
allegations in the pleading of the claimant, would situation contemplated in the exception is not the
nevertheless prevent or bar recovery by him or her. [Section case (i.e. no actionable document)? File an
5, Rule 6] amended or supplemental complaint to address
• Common defense: In case for recovery of sum of new matters alleged in the Answer.
money à payment by the debtor is usually the • When filed: Within 15 days.
defense.
What is a responsive pleading to a reply? Rejoinder.
Improper venue, like lack of jurisdiction over the person, is • No period provided.
waivable, and would not lead to the dismissal of the case.
Prof. Tranquil: I will just follow the same period as a Reply.
Failure to comply with condition precedents are also Or if I’m being careful, in 5 days.
waivable.
Counterclaim and cross claim
The grounds shall be limited to those under Sec. 5(b), Counterclaim
Rule 6 and those enumerated under Sec. 12, Rule 8. COUNTERCLAIM: Any claim which a defending party may
1. Fraud have against an opposing party.
2. Statute of limitations
3. Release KINDS:
4. Payment 1. Compulsory counterclaim
5. Illegality a. Arises out of or is connected with the
6. Statute of frauds transaction or occurrence constituting the
7. Estoppel subject matter of the opposing party’s
8. Former recovery claim
9. Discharge in bankruptcy, and b. Test: Without the principal action, there
10. Any other matter by way of confession and would not have been a counterclaim.
avoidance. c. No need for filing fee.
d. No need for a certification against forum
Note: The court is allowed to conduct a summary hearing shopping.
within 15 calendar days from the allegation of these 2. Permissive counterclaim
affirmative defenses in the answer. After such hearing, a. It does not arise out of or is not necessarily
they must be resolved by the court within 30 calendar days connected with the subject matter of the
from the end of the summary hearing. [Sec. 12(d), Rule 8] opposing party’s claim.
b. Filing fees have to be paid
Under Sec. 5(b), Rule 6, 2nd paragraph c. CNFS required.
1. Lack of jurisdiction over the subject matter;
2. Litis pendentia, and
Crossclaim
3. Res judicata.
CROSS-CLAIM: Any claim by one party against a co-party
arising out of the transaction or occurrence that is the
Note: These are not under Rule 8, Section 12.
subject matter either of the original action or of a
counterclaim therein.
Denial of an affirmative defense is not subject of a motion
for reconsideration, just go with the case. Appeal the merits
It does not require leave of court.
of the case when you get a decision.
• Motion for reconsideration of the court’s action on
There should be multiple parties on one side.
an affirmative defense is now a prohibited motion.
[Section 12(c), Rule 15]
There can be both a cross claim and counterclaim at the
same time
NEGATIVE PREGNANT: A negative implying also an
affirmative which, although stated in negative form, really
admits the allegations to which it relates. Third party complaint
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THIRD-PARTY COMPLAINT – claim of defending party
against a person not a party to the action. Requires leave
of court.
Requires leave of court. Third party complaint must be
included with motion to admit the same.
• When you do a third party complaint, you are
bringing in an person whom the court just not have
jurisdiction over or to subrogate to step into the sue
of another.
• To contribute, to indemnify, to subrogate, or other
relief.
It can be denied.
When the third (fourth, etc.) party complaint will not
be granted leave, and the court will require the filing
of a separate action:
1. Where matters extraneous to the issue in the
principal case are raised, or
2. Where the effect would be that a new and separate
controversy is introduced in the action. [Sec. 11,
Rule 6]
When, despite grant of leave allowing the filing of a
third-party complaint, the court dismisses the third
(fourth) party complaint
• The third-party defendant cannot be located within
30 days from grant of leave. [Sec. 11, Rule 6]
Parts and Contents of a Pleading [Rule 7]
Signature and Address
There is now an additional duty for the lawyer to
inquire reasonably into the circumstances.
SIGNATURE
1. It means that you have read it, and to the best of
your knowledge, information, and belief and that it
is formed after an inquiry reasonable under the
circumstances. Unlike before, it was sufficient that
there was good ground. It is not sufficient (now)
that you have read it, as a lawyer, you should have
(conducted) an inquiry reasonable under the
circumstance. It requires some level of prudence
and diligence.
2. It is also a certification that the pleading was not for
an improper purpose: that it was not made to
harass, to delay, or to needlessly increase the
costs of litigation.
3. That such arguments are supported by law and
jurisprudence. Or, there is a nonfrivolous
argument for extending, modifying, or reversing
jurisprudence. No unreasonable contentions and
arguments.
4. It is also a certification that the factual contentions
have evidentiary support, or, if specifically so
identified, will have evidentiary support after modes
of recovery (consistent with Rule 6).
5. That the denials are warranted by the evidence, or
based on honest belief, or lack of knowledge
Consequence of violation: The court has the option to
motu propio, or upon motion, impose a sanction, of course,
after due process. Or worse, it may refer the matter to the
proper office.
• LIABILITY OF LAW FIRM: Jointly and severally
liable for a violation committed by a partner, absent
exceptional circumstances.
o It may include non-monetary directive or
sanction, order to pay penalty in court, or,
if posed on motion and warranted for
effective deterrence, an order directing
payment to the movant of part or all of the
reasonable attorney’s fees and other
expenses resulting from the violation (i.e.
attorney’s fees for the filing of the motion
for sanction.) The penalty cannot be
passed on to the client.
Verification
Who verifies: It should be a party who verifies.
Nature: Requirement of form, not jurisdictional.
• May be subject of amendment, or subject of
supplement.
Should allege:
1. The allegations in the pleading are true and correct
based on his or her personal knowledge, or based
on authentic documents;
2. The pleading is not filed to harass, cause
unnecessary delay, or needlessly increase the cost
of litigation; and
3. The factual allegations therein have evidentiary
support or, if specifically so identified, will likewise
have evidentiary support after a reasonable
opportunity for discovery.
Only pleadings which are required to be verified are verified:
1. Initiatory pleadings with prayer for provisional
remedies;
a. No requirement that complaint should be
verified if without prayer for provisional
remedies.
2. Intracorporate disputes
3. Petition for review on certiorari under Rule 45;
4. Certiorari under Rule 64 (COA and COMELEC);
5. Certiorari, prohibition, mandamus (Rule 65);
6. Other examples provided by law
If someone has been duly authorized, that which appears
in the verification should also appear in the authority. Only
an affiant duly authorized to make verification may do so.
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1. Juridical entity: Secretary’s certificate
reproducing the Resolution..
2. Someone signs for the party: Must have a
special power of attorney.
Who signs the verification
Rule: It is the client who should sign. If multiple clients, all of
them has to sign. If juridical entity, the person who is
authorized to do so.
• Substantial compliance: When petitioners have a
common interest.
Signature of counsel is not compliance with the rules.
Execution of verification and certificate of non-forum
shopping by counsel is defective certification.
Cordillera Global Network v. Paje (2019)
The failure of all petitioners to sign the document is not a
sufficient ground for the Petition's outright dismissal.
Jurisprudence confirms that petitioners substantially
complied with the verification requirement. The 30
signatories provided the guarantee that: (1) they had ample
knowledge as to the truth of the allegations in the Petition;
and (2) the Petition was made in good faith. For the
certification against forum shopping, Altres stated the
general rule that non-signing petitioners will be dropped as
parties to the case. Nonetheless, there is an exception:
when all petitioners share a common interest, the signature
of one (1) petitioner in the certification against forum
shopping is enough to satisfy the substantial compliance
rule.
Certificate against non-forum shopping
With the amendment, there should be an authority if
someone else signs on your behalf.
No requirement under CNFS for the SPA to reproduce the
verification. All that is required is the SPA.
What should be in the CNFS
1. That he or she has not commenced any action or
filed any claim involving the same issues in any
court, tribunal or quasi- judicial agency and, to the
best of his knowledge, no such other action is
pending
2. If there is such other pending action or claim, a
complete statement of the present status thereof,
and
3. If he or she should learn that the same or a similar
action or claim has been filed or is pending, he shall
report that fact within 5 calendar days to the court
wherein his aforesaid complaint or initiatory
pleading has been filed. [Sec. 5, Rule 7]
EFFECT OF NON-COMPLIANCE: May be liable for
indirect contempt of court, without prejudice to
administrative and criminal actions
Willful and deliberate forum shopping: May be liable for
direct contempt of court. It is ground for summary
dismissal, with prejudice. It is also cause for administrative
sanctions.
• Question of fact: Look at the pleadings. If the
complaint mirrors the others.
Default [ Rule 9]
Who may be declared in default: Defendant.
Ground for declaration of default: Failure of the
defending party to answer within the time allowed therefor.
• There should be proof of such failure
Motion to declare in default is prohibited in Small Claims
and the Rules on Summary Procedure.
Actions of the court when a party is declared in
default:
1. Proceed to render judgment granting claimant
such relief as his pleading may warrant; or
2. Require claimant to submit evidence ex parte.
a. The reception of evidence may be
delegated to the clerk of court.
Effect of order of default: The party in default shall be
entitled to only notices of subsequent proceedings but may
not take part in trial.
Remedy: Motion under oath to set aside the order of
default on the grounds of extrinsic fraud, accident, mistake,
and excusable neglect.
Effect of PARTIAL default: Does not result in plaintiff
presenting evidence ex parte. The court shall try the case
against all upon the answers thus filed and render judgment
upon the evidence presented.
Relief; What the Court can award in case of default:
An amount that does not exceed the amount to be different
in kind from that prayed nor shall the court award
unliquidated damages.
Judgment by default: There is already a final judgment.
This is different from order by default.
• Possible Remedies:
o Motion for new trial (not reconsideration,
since there is no evidence);
o Appeal
o Petition for relief of judgment, if you are a
party to the case.
o Petition for certiorari under Rule 65.
General default: No name defendants, it is an action in
rem.
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• E.g. Application for certificate of public

convenience. It requires leave of court.

Amendments [Rule 10] It may be answered within 20 calendar days from notice of
1. Adding an allegation, the order admitting the same unless the court provides for
2. Adding the name of any party, another period.
3. Striking out an allegation, • Supplemental complaint: Within 20 days;
4. Striking out the name of any party, • Other pleadings, not a response, not an Answer to
5. Correcting a mistake in the name of a party, or a supplemental complaint: Period to respond is 10
6. Correcting a mistaken or inadequate allegation or days from order admitting it. [Rule 10, Section 6]
description in any other respect. [Sec. 1, Rule 10]
Periods for Responsive Pleadings [Rule 11]
Types Answer to the complaint Within 30 calendar days
1. Matter of Right after service of summons.
a. Every litigant is entitled to amendment as
a matter of right before a responsive Exception: Unless a
pleading is filed different period is fixed by
b. Period to file an answer to an amended the court.
complaint is a period of 30 days. Answer to amended Within 30 calendar days
2. With leave of court complaint as a matter of after being served with a
a. Only when there is already an answer. right copy thereof.
b. Under the present rules, the amendment
may now substantially alter the cause of By: Defendant
action or defense, upon leave of court. Answer to amended Within 15 calendar days
You would have to explain to the court that complaint not a matter of from notice of the order
this is not for delay. right admitting the same.
c. A pleading may not be amended to confer Answer to counterclaim or Within 20 calendar days
jurisdiction. cross claim
i. Court will look at the allegations of Answer to third party Within 30 calendar days
the complaint. complaint
3. Formal amendments Reply (only if there is an Within 15 calendar days
a. (1) Defect in the designation of the parties actionable document from service of the
and (2) other clearly clerical or attached to answer) pleading responded to
typographical errors. Answer to supplemental Within 20 calendar days
b. Court can summarily, on its own initiative, complaint from notice of the order
correct the error. admitting the same.

Amendment to conform to evidence: No amendment of Exception: Unless a

such pleadings deemed amended is necessary to cause different period is fixed by
them to conform to the evidence. Failure to amend does the court.
not affect the trial of these issues. Answer to supplemental Within 10 days from notice
• Old Rule. pleading of the order admitting the
supplemental pleading.
EFFECT OF AMENDED PLEADING: When a pleading is
amended, the original pleading is deemed to have been EXTENSION OF TIME TO FILE ANSWER: Additional
abandoned. The original ceases to perform any further period of not more than 30 calendar days.
function as a pleading. The case stands for trial on the • For meritorious reasons.
amended pleading. • To whom: Defendant.
• However, admissions in superseded pleadings • Only one motion for extension is allowed.
may be offered in evidence against the pleader and
claims or defenses alleged therein not incorporated The court, however, may allow any other pleading to be filed
in the amended pleading shall be deemed waived. after the time fixed by these Rules.

Supplemental Pleadings Filing and Service [Rule 13]

There are transactions, occurrences, events, which have
happened since the date of the pleading sought to be Manner of filing (Party in relation to the court)
supplanted. 1. Personal
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a.
Clerk of court shall endorse on the
pleading the date and hour of filing.
2. Registered Mail
a. The date of mailing shall be considered as
the date of filing.
b. Ordinary mail filing is not allowed because
there is no certainty or no way for the court
to ascertain when it is filed.
3. Accredited Courier
a. It is considered as filed as the time or the
date of mailing, same as registered mail.
b. Important to check with the SC if the
courier is accredited.
4. Electronic mail, other electronic means
a. The date of electronic transmission shall
be considered on the date of filing.
Proof of filing [Section 16, Rule 13]
Important when there is a dispute on W/N the pleading was
actually filed.
1. Personal filing: That it appears in the records of the
case
a. If not there à your receiving copy is
considered proof for purposes of proof of
filing.
2. Registered mail
a. Registered receipt; and
b. Affidavit of the person mailing; and
c. Return card
3. Accredited courier
a. Affidavit of service of the person mailing;
b. Official Receipt;
c. Tracking Number
4. Electronic mail
a. Affidavit of electronic filing of the filing party
b. Paper copy of the pleading transmitted
(and may be subsequently filed personally
or registered mail)
5. Other authorized means
a. Affidavit of electronic filing of filing party
b. Copy of electronic acknowledgment of its
filing by the court
Service (Party in relation to other parties; but the court may
also serve pleadings)
1. Personal
a. Handed personally to another party or his
representative.
b. Always differentiate Rule 13 from Rule 14
(summons).
2. Registered Mail
a. Depositing a copy in a post office in a
sealed envelope, make the payment,
receive the registry receipt. If there is no
registry service the mode is by ordinary
mail.
3. Ordinary mail
a. Ordinary mail is acceptable as service.
Look at the last line of Section 7, Rule 13.
4. Accredited courier
5. Electronic Mail, Facsimile Transmission, other
Electronic Means as may be authorized
6. Those which is provided by international
conventions to which the Philippines is a party
a. See AO 251-2020 issued by the Supreme
Court.
b. Application of the Hague Service
Convention [AO 251-2020]
Conditions for the application of the Hague
Service Convention in the Philippines:
i. A document is to be transmitted
from one State Party for service to
another State Party;
ii. Address of intended recipient in
the receiving State Party is
known;
iii. Document to be served is a
judicial document;
1. Includes summons,
subpoenas, etc.
iv. Document to be served relates to
a civil or commercial matter.
Proof of service
1. Personal service – this is different from personal
service under Rule 14 (summons).
a. Written Admission by the Parties;
b. Official return of the server
c. Affidavit of the party serving
2. Ordinary mail;
a. Affidavit of person mailing
3. Registered mail
a. Affidavit of the Person Mailing
b. Registered Receipt
c. Return card
4. Accredited courier;
a. Affidavit of the person who brought the
pleading to the courier
b. Official receipt
c. Tracking Number
5. Electronic mail or fax
a. Affidavit of the person sending;
b. Printed proof of transmittal + printed copy;
c. Service by fax
6. By convention
a. Proof of receipt according to the convention
Completeness of service
1. Personal service
a. Upon actual delivery
2. Ordinary mail
a. Upon the expiration of 10 days
3. Registered mail
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a. Actual receipt or expiration of the period of
5 days from first notice, whichever comes
first.
4. Accredited courier
a. Actual receipt or at least after two
attempts or after expiration of 5 days from
first notice, whichever comes first.
5. Electronic means
a. Upon electronic transmission of the
document + when available, a notification
that would show that it has been sent.
b. However, it is not complete when the party
sending learns that the other side has not
received such transmission.
6. Facsimile
a. Complete upon receipt of the other party.
An indication that it was received with the
facsimile printout.
Electronic means
Service through facsimile and electronic mail will only be
allowed if the party concerned consents to such mode of
service. It cannot be unilateral, the other party must agree.
Change of address: If you change your electronic mail
address or facsimile number, it is your duty to inform the
court within a period of 5 days from such change.
• If you did not change à address is presumed valid.
Orders, not judgments, may be sent by electronic mail.
Presumptive notice
Narrow application: Pertains only to a notice to setting
originating from the court.
• Does not apply to court orders, etc.
There shall be presumptive notice to a party of a court
setting:
1. If such appears on the records to have been mailed
at least 20 calendar days before the scheduled
date of the hearing and if the addressee is within
the same judicial region of the court where the case
is pending
2. If not within judicial region à At least 30 calendar
days before
Service of judgments and final orders
HOW MADE: Personally or through registered mail.
• Under amendment: By accredited courier upon ex
parte motion of any party in the case, at the
expense of such party.
If a party summoned by publication fails to appear in the
action, judgments, final orders, or resolutions against him
or her shall be served upon him or her also by means of
publication at the expense of the prevailing party.
• Express provision. While we differentiate this Rule
from Rule 14, this is because what is being served
comes from the court.
The court may electronically serve orders and other
documents to all the parties in the case which shall have
the same effect and validity as provided herein. A paper
copy of the order or other document electronically served
shall be retained and attached to the record of the case.
[Rule 13, Section 18]
Conventional service or filing
Only personal or registered mail.
CONVENTIONAL SERVICE: The following orders,
pleadings, and other documents must be served or filed
personally or by registered mail when allowed, and shall
not be served or filed electronically, unless express
permission is granted by the Court:
a. Initiatory pleadings and initial responsive pleadings,
such as an answer;
b. Subpoenae, protection orders, and writs;
c. Appendices and exhibits to motions, or other
documents that are not readily amenable to
electronic scanning may, at the option of the party
filing such, be filed and served conventionally; and
d. Sealed and confidential documents or records
SUMMONS
Issuance of summons: From within a period of 5 days,
from receipt of the initiatory pleading and proof of payment
of legal fees, the clerk of court shall issue the corresponding
summons to the defendant. [Section 1, Rule 14]
• Unless the complaint is on its face dismissible.
Who may serve:
1. Sheriff
2. His or her deputy
3. Other proper court officer
4. Plaintiff, together with the sheriff à if authorized by
Court
a. In case of failure of service of summons by
them (sheriff or deputy)
5. Plaintiff himself (should be authorized)
a. where summons is to be served outside of
the judicial region of the court where the
case is pending.
6. Authorized representative of plaintiff (should be
armed with SPA, or Resolution if juridical entity)
a. Notify court in writing.
b. If plaintiff misrepresents: The case will be
dismissed with prejudice. Plaintiff should
also be met with the appropriate
sanctions.
7. Plaintiff (as ordered by the court)
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a. If summons is returned without being
served on any or all defendants by other
means available under the Rules.
b. Failure to comply with order: Initiatory
pleading dismissed without prejudice.
Validity of summons
UNTIL WHEN VALID: Until it is duly served, unless recalled
by the court.
IF LOSS OR DESTRUCTION: The court may, upon
motion, issue an alias summons.
Tender of summons
By leaving the summons within the view and in the
defendant’s presence.
It is not tender if not within the view and within the presence
of the defendant.
Preferred service of summons is personal service,
whether it is an action in rem or in personam.
Failure of service
• Unsuccessful attempt to personally serve the
summons in the address indicated in the
complaint.
• But if you have knowledge that the person on
whom the summons to be served is elsewhere, it
is still valid as personal service if served where the
defendant is.
Defendant should receive the summons personally.
FAILURE OF SERVICE: After unsuccessful attempts to
personally serve the summons on the defendant in his or
her address indicated in the complaint.
Substituted Service
WHEN SUBSTITUTED SERVICE IS MADE: When
defendant cannot be served personally after at least 3
attempts on 2 different dates.
• Remember: Impossibility of personal service.
HOW MADE:
1. By leaving copies of the summons at the
defendant's residence to a person at least eighteen
(18) years of age and of sufficient discretion
residing therein;
a. If the person does not live there à the
service of summons is defective.
2. By leaving copies of the summons at the
defendant's office or regular place of business with
some competent person in charge thereof.
a. A competent person includes, but is not
limited to, one who customarily receives
correspondences for the defendant.
3. By leaving copies of the summons, if refused entry
upon making his or her authority and purpose
known, with any of the officers of the homeowners'
association or condominium corporation, or its
chief security officer in charge of the community or
the building where the defendant may be found;
and
4. By sending an electronic mail to the defendant's
electronic mail address, if allowed by the court.
a. Only if all the aforementioned means have
not been successful.
Service upon a domestic private juridical entity
The Rules have been relaxed.
The summons shall be served upon the president, general
manager, corporate secretary, treasurer or in house
counsel of the corporation, wherever they may be found. It
is therefore no longer necessary that they should be in their
office, since before these efforts were done to these
individuals on their respective offices. But now, these
individuals may be served where they may be found.
Or, in their absent or unavailability, on their
secretaries.
If service cannot be made on the enumerated officers or
their secretaries, it shall be made upon the person who
customarily received the correspondence for the defendant
at its principal office. [Sec. 12, Rule 14]
Note: A person who customarily receives correspondence
is also a person to whom substituted service of summons
may be made after at least 3 attempts on 2 different dates.
[Sec. 6, Rule 14] However, with such provision under this
section, it appears that the requirement of 3 attempts on 2
different dates does not apply in this instance. As soon as
service cannot be made on the officers or their secretaries,
service can already be made on the person customarily
receiving correspondence.
Service upon a foreign juridical entity
If the foreign juridical entity is not registered in the
Philippines—therefore, it is not doing business in the
Philippines—then, naturally, it has no representatives,
though it transacted.
Therefore, the provision proceeds that if it is (1) not
registered in the Philippines and (2) has no resident agent.
Note, isolated transactions are allowed.
If it has a resident agent
1. Its resident agent designated in accordance with
law,
2. If there is no such agent, on the government official
designate by law to that effect, or
3. On any of its officers, agents, directors, or trustees
within the Philippines. [Sec. 14, Rule 14]
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No resident agent
Service may, with leave of court, be effected outside the
Philippines through:
1. Personal service coursed through the appropriate
court in the foreign country with the assistance of
the DFA;
2. Publication once in a newspaper of general
circulation in the country where the defendant may
be found and by serving a copy of the summons
and the court order by registered mail at the last
known address of the defendant;
3. Facsimile;
4. Electronic means with the prescribed proof of
service; or
5. Other means as the court, in its discretion, may
direct. [Sec. 14, Rule 14]
Service upon prisoners
Where the defendant is a prisoner confined in a jail or
institution, service shall be effected upon him by the officer
having the management of such jail or institution.
1. Such officer is deemed a special sheriff
2. He or she shall file a return within 5 calendar days
from service of summons. [Sec. 8, Rule 14]
Service upon minors or incompetent
Where the defendant is a minor, insane, or incompetent
person, service of summons shall be made:
a. Upon him or her personally, AND
b. On his or her legal guardian
a. If none, on his or her guardian ad litem
whose appointment shall be applied for by
the plaintiff
b. In the case of a minor, on his or her parent
or guardian. [Sec. 10, Rule 14]
Duty of counsel of record
The counsel shall be deputized by the court to serve
summons on his or her client. [Section 13, Rule 14]
• Where the summons is improperly served and a
lawyer makes a special appearance on behalf of
the defendant to, among others, question the
validity of service of summons.
The policy of the SC now is that summons is always served.
Return
Within thirty (30) calendar days from issuance of summons
by the clerk of court and receipt thereof, the sheriff or
process server, or person authorized by the court, shall
complete its service.
Within five (5) calendar days from service of summons, the
server shall file with the court and serve a copy of the return
to the plaintiff's counsel, personally, by registered mail, or
by electronic means authorized by the Rules. [Section 20,
Rule 14]
Section 6 and Section 20, Rule 14 would have to mirror
each other.
• The date and time of the attempts would have to
be indicated in the return.
• Details on the inquiries made on the defendant
have to be set forth in the return.
Contents if substituted service:
1. The impossibility of prompt personal service within
a period of thirty (30) calendar days from issue and
receipt of summons;
2. The date and time of the three (3) attempts on at
least (2) two different dates to cause personal
service and the details of the inquiries made to
locate the defendant residing thereat; and
3. The name of the person at least eighteen (18) years
of age and of sufficient discretion residing thereat,
name of competent person in charge of the
defendant's office or regular place of business, or
name of the officer of the homeowners' association
or condominium corporation or its chief security
officer in charge of the community or building
where the defendant may be found.
Voluntary appearance
The defendant's voluntary appearance in the action shall be
equivalent to service of summons. The inclusion in a motion
to dismiss of other grounds aside from lack of jurisdiction
over the person of the defendant shall be deemed a
voluntary appearance. [Section 23, Rule 14]
Rule 11, Section 11 now allows you to file an Answer. Under
Rule 8, Section 12, lack of jurisdiction over the person of
the defendant is not a ground for motion to dismiss but is
now just an affirmative defense.
• Since the Rules now allow to extend the period for
filing an Answer, the defendant should not be
prejudiced.
Prof. Tranquil: Be very careful about this.
Other rules on summons
Sections 16, 17, 18 à refers only to an individual, not a
corporation.
• If corporation à Section 12, 14.
A defendant whose identity or whereabouts are
unknown: In the past, this only applied to actions in rem.
But now, because of the phrase “any action”, it covers any
action, whether in rem or in personam.
• How served: Within ninety (90) calendar days from
the commencement of the action, service may, by
leave of court, be effected upon him or her by
publication in a newspaper of general circulation
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and in such places and for such time as the court
may order. [Section 16, Rule 14]
Extraterritorial service of summons
Only if defendant is not residing or is not found in the
Philippines.
Actions covered:
1. An action covering the status of the plaintiff,
2. When the subject property is in the Philippines, and
owned by a non-resident defendant
3. Any action where there is a claim on an interest, a
claim or a lien of an interest, actual or contingent,
over a property, which is and includes a property
attached in the Philippines.
Four ways to serve summons
1. Personal Service
2. As provided for in international conventions to
which the Philippines is a party;
3. Publication in a newspaper of general circulation in
such places and for such time as the court may
order, in which case a copy of the summons + by
registered mail to the last known address of the
defendant
4. Any other manner the court may deem sufficient.
Any order granting such leave shall specify a reasonable
time within which the defendant must answer, which shall
not be less than 60 calendar days after notice. [Sec. 17,
Rule 14]
Arrieta v. Arrieta (2018)
RTC's call not to have a copy of the summons sent to
Melania's last known address – whether through registered
mail (in such case, the mode of service would qualify under
the second mode) or through other means (as exhibited in
Romualdez-Licaros) – in addition to the publication of the
summons is amply justified by the circumstances of this
case. As the records show, it is undisputed that Melania
had left the Philippines and had been estranged from Cris
as early as 1991. Since then, Melania has been residing in
San Diego, California, without any showing that she had
informed Cris or that Cris knew of her foreign address.
Hence, given this backdrop, it is quite understandable why
it would have been futile, more so, logistically improbable,
to have the summons sent to Melania's "last known
address." At the very least, the publication of summons
should be considered as substantial compliance with the
rules on service.
Proof of service by publication
1. Affidavit from the publisher, editor, or advertising
manager together with a copy of the publication
attached;
2. An affidavit showing the deposit of the copy of the
summons, together with the order of publication in
the post office, with postage paid.
MOTIONS
Innovations: There is now no notice of hearing, it is the
court’s discretion. Only the court can set a hearing on the
motion, and only on a litigious motion. Only the court, on
the exercise of its discretion, and when it seems necessary,
may call a hearing on the motion. The notice of hearing shall
be addressed to the parties.
GR: Motions must be in writing.
XPN: Except those made in open court.
• A motion made in open court or in the course of
the hearing, should be immediately resolved by the
court, in open court, after giving the adverse party
the right to be heard, to oppose, and to contest.
The court will then have to resolve it that very
moment.
• Not all motions in open court may cover facts
which are on the record. In such a situation, the
court may hear the matter on affidavits or
depositions. The court may direct the matter to be
heard on oral testimony or deposition. The court
can also conduct the hearing if it wishes.
Litigious vs. Non-litigious motions
Non-litigious: Will not prejudice the rights of the adverse
party.
1. Motion for the issuance of an alias summons
2. Motion for extension to file answer;
3. Motion for postponement;
4. Motion for the issuance of a writ of execution;
5. Motion for the issuance of an alias writ of execution;
a. Only relevant when the original is lost.
6. Motion for the issuance of a writ of possession;
7. Motion for the issuance of an order directing the
sheriff to execute the final certificate of sale; and
8. Other similar motions.
When resolved: Within five (5) calendar days from receipt
thereof.
Litigious:
1. Motion for bill of particulars;
2. Motion to dismiss (note amendments);
3. Motion for new trial;
4. Motion for reconsideration;
5. Motion for execution pending appeal;
6. Motion to amend after a responsive pleading has
been filed;
7. Motion to cancel statutory lien;
8. Motion for an order to break in or for a writ of
demolition;
a. Under Rule 39 Sec. 10 while the court has
the power to order the removal of the
improvements, the writ of demolition
cannot be issued without notice and
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hearing, and naturally the other party that
may be prejudiced will have file another
motion or a comment.
9. Motion for intervention;
10. Motion for judgment on the pleadings;
11. Motion for summary judgment;
12. Demurrer to evidence;
a. Would have to comply with the provisions
of Rule 15.
13. Motion to declare defendant in default; and
14. Other similar motions.
Opposition; When filed: Within five (5) calendar days from
receipt thereof.
• No other submissions shall be considered by the
court in the resolution of the motion.
When resolved: 15 calendar days from its receipt of the
opposition thereto, or upon expiration of the period to file
such opposition.
Setting of a motion for hearing is now addressed to the
discretion of the court. It is only the court that sets the case
for hearing.
Motion Day: The same shall be set on a Friday. It is only
the court who can set the hearing on a motion.
Prohibited Motions
1. Motion to dismiss except on the following grounds:
a. That the court has no jurisdiction over the
subject matter of the claim;
b. That there is another action pending
between the same parties for the same
cause; and
c. That the cause of action is barred by a
prior judgment or by the statute of
limitations.
2. Motion to hear affirmative defenses;
3. Motion for reconsideration of the court's action on
the affirmative defenses;
4. Motion to suspend proceedings without a
temporary restraining order or injunction issued by
a higher court;
5. Motion for extension of time to file pleadings,
affidavits or any other papers, except a motion for
extension to file an answer as provided by Section
11, Rule 11; and
6. Motion for postponement intended for delay,
except if it is based on acts of God, force majeure
or physical inability of the witness to appear and
testify.
a. If the motion is granted based on such
exceptions, the moving party shall be
warned that the presentation of its
evidence must still be terminated on the
dates previously agreed upon.
Motion to Dismiss
It is now a prohibited pleading.
There are only four allowable grounds:
1. No jurisdiction over the subject matter of the claim;
2. Litis pendentia;
3. Res judicata;
4. Barred by the statute of limitations.
Former grounds under Rule 16 (Formerly Motion to Dismiss)
are now affirmative defenses.
Period: No period to file a motion to dismiss. But it is now
30 days, since that is also the period to file an Answer, as it
is now a prohibited motion.
• The act that caused the interruption is not included
in the counting of the period. [Rule 22]
Dismissal with Prejudice
Subject to the right of appeal, an order granting a motion to
dismiss or an affirmative defense that the cause of action is
barred by a prior judgment or by the statute of limitations;
that the claim or demand set forth in the plaintiffs pleading
has been paid, waived, abandoned or otherwise
extinguished; or that the claim on which the action is
founded is unenforceable under the provisions of the
statute of frauds, shall bar the refiling of the same action or
claim. [Section 13, Rule 15]
Motion for Bill of Particulars
It is a legal option, but it is not mandatory to avail of at the
time.
You cannot file an Answer and thereafter to file a Motion for
Bill of Particulars.
Before filing an Answer, a motion for bill of particulars may
be filed.
It is not enough to say that it is vague, not alleged with
sufficient definiteness. You have to allege the defects, tell
the party what is defective, why, and what you need from
them.
EFFECT OF BILL OF PARTICULARS: Made part of the
pleading that is subject of the bill of particulars.
Stay of period to file responsive pleading: After service
of the bill of particulars or of a more definite pleading, or
after notice of denial of his motion, the moving party may
file his responsive pleading within the period to which he
was entitled at the time of filing his motion, which shall not
be less than five (5) calendar days in any event. [Section 5,
Rule 12]
DISMISSAL OF ACTIONS
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The plaintiff can cause his own case to be dismissed.
How:
1. By mere notice of dismissal (as a matter of right)
a. When: Without an answer having been
filed.
b. Dismissal is without prejudice. It will only
operate as a dismissal with prejudice if it
has already been filed once, and
dismissed. In that case, the second notice
of dismissal will be tantamount to a
adjudication on the merits/dismissal with
prejudice.
2. By motion by plaintiff
a. When: After an answer has been filed
b. It is now within the discretion of the court.
c. General Rule: Dismissal by motion of
plaintiff is dismissal without prejudice.
d. Exception: Unless the order of dismissal
specifies that it is with prejudice.
e. What happens to the counterclaim?
The counterclaim survives. Despite the
dismissal of the principal action, the
counterclaim will have to stand on its own
merits.
3. Due to the fault of the plaintiff
a. The complaint may be dismissed even if
plaintiff does not desire to have the same
dismissed, for reasons attributed to his
fault:
i. failure of plaintiff, without
justifiable reasons, to appear on
the date of the presentation of his
evidence in chief;
ii. Fails to comply with the rules or
order of the court;
iii. failure of the plaintiff to prosecute
his action for an unreasonable
length of time (also called non
prosequitur).
PRE-TRIAL
Today, the plaintiff’s counsel has no duty to file an ex parte
motion to set the case for pre-trial. The duty is with the
branch clerk of court.
• After the last responsive pleading has been filed, it
is the duty of the branch clerk of court to issue a
pre-trial notice within 5 days.
• The period for the setting should be no later than
60 calendar days from the filing of the last
responsive pleading.
It is MANDATORY in civil cases. It should be terminated
promptly.
Take note of Section 2, 6, 7 together.
What happens in pre-trial:
1. Simplification of factual and legal issues;
2. Possibility of obtaining stipulations (not yet
admissions)
a. The possibility of a stipulation to be
obtained and stipulations should be
separated. Admissions have already been
on the record. An (an) offer of stipulation is
different from an admitted fact already on
record.
3. Enumerate witnesses and trial dates when you
intend to present them;
4. Advisability of referral to commissioner;
5. Propriety of judgment on the pleadings, or
summary judgment;
6. Marking of documents.
a. Pre-trial is an opportunity for the parties to
make comparison vis-à-vis the copies to
be marked.
The Rules allow a reservation.
• Documentary evidence, and other objective
evidence: Can be reserved by being given a
description.
• Testimonial evidence: Give name and position and
nature of testimony.
Effect of absence
1. Plaintiff and counsel: As a general rule, the
consequence if you were notified during pre-trial
and your non-appearance was not justified
(counsel and party), you waive any objection on the
faithfulness of the reproduction, the evidence
marked, or their genuineness, and due execution.
a. Second consequence, failure to by the
party and counsel to BRING the evidence
(despite their presence) means waiver of
the presentation of such evidence.
b. When excused: Acts of God, force
majeure, or duly substantiated physical
inability. [Section 4, Rule 18]
2. Defendant: It shall be cause to allow plaintiff to
present his or her evidence ex parte within 10 days
from termination of pre-trial, and the court to render
judgment on the basis of the evidence offered.
Can a representative appear in behalf of the party? YES. A
representative may appear on behalf of a party, but must
be fully authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute
resolution, and to enter into stipulations or admissions of
facts and documents.
Failure to appear without valid cause when so
required of plaintiff and counsel: Failure to appear, if
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REMEDIAL LAW | Civil Procedure | Prof. Tranquil Gervacio Salvador III
without valid cause, it shall be cause for dismissal of the
action. The dismissal shall be with prejudice, unless other-
wise ordered by the court. [Section 5, Rule 18]
Pre-Trial Brief: The nature and the purpose discussed will
naturally be contained in the pre-trial brief. It should have
been filed and served on the adverse party.
If brief already submitted à duty of the court to issue a pre-
trial order upon termination of pre-trial.
What is in the pre-trial order:
1. an enumeration of the admitted facts;
2. the minutes of the pre- trial conference;
3. the legal and factual issue/s to be tried;
4. the applicable law, rules and jurisprudence; e. the
evidence marked;
5. the specific trial dates for continuous trial;
6. the case flowchart as determined by the court
(should contains the different stages of the
proceedings up to promulgation of decision);
7. a statement that the one-day examination of
witness rule and most important witness rule shall
be strictly followed; and
8. a statement that the court shall render judgment on
the pleadings or summary judgment, as the case
may be.
Should there be no more controverted facts, or no more
genuine issue to as to any material fact, or an absence of
any issue, or should the answer fail to tender an issue, the
court shall, without prejudice to a party moving for judgment
on the pleadings under Rule 34 or summary judgment
under Rule 35, motu propio include in the pre- trial order
that the case be submitted for summary judgment or
judgment on the pleadings, without need of position papers
or memoranda.
• In such cases, judgment shall be rendered within
ninety (90) calendar days from termination of the
pre- trial.
The order of the court to submit the case for judgment
pursuant to this Rule shall not be the subject to appeal or
certiorari.
• A Motion for Reconsideration may be filed as it is
not expressly prohibited. But once it is decided
upon, you have to wait for the judgment of the
court on the case.
Court Annexed Mediation
This is mandatory.
WHEN: After pre-trial and, after issues are joined
WHO CONDUCTS: The court
DURATION: The period for court-annexed mediation shall
not exceed thirty (30) calendar days without further
extension.
Judicial Dispute Resolution
Assessed by the judge where it was originally assigned.
WHEN: Within a non-extendible period of fifteen (15)
calendar days from notice of failure of the court- annexed
mediation.
CONDITION: Only if the judge of the court to which the
case was originally raffled is convinced that settlement is still
possible
If judicial dispute resolution fails, trial before the original
court shall proceed on the dates agreed upon
N.B. Three (3) new provisions have been inserted (Sections
8-10), which change the timing and process for the conduct
of Court-Annexed Mediation (CAM) and Judicial Dispute
Resolution (JDR) and which expressly authorizes the court
to render a judgment after pre-trial (whether judgment on
the pleadings or summary judgment)
Non-appearance of parties in CAM and JDR: Same
consequence as non-appearance in pre-trial. See Section
3, Rule 18.
INTERVENTION
There is already a pending case and you would want to join
the fray.
INTERVENTION: Remedy by which a third party, not
originally impleaded, becomes a litigant to enable him/her/it
to protect/preserve a right or interest which may be affected
by such proceedings.
WHO MAY INTERVENE: Anyone with legal interest in the
matter of litigation, or in the success of either party, or
interest against both. It is possible that he is adversely
affected by the disposition of the party in the custody of the
court of with the officer.
Time to intervene: Before rendition of judgment.
Instances where there is final judgment: Generally, you
can no longer intervene. Unless the intervenor is an
indispensable party.
SUBPOENA
Two kinds
1. Subpoena ad testificandum
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REMEDIAL LAW | Civil Procedure | Prof. Tranquil Gervacio Salvador III

a. To appear and testify be within the 100km radius as

2. Subpoena duces tecum provided by the rules.
a. You are required to appear in court and to ii. If you’re outside of the 100 km
bring certain documents. radius, your appearance cannot
b. The documents should be described. be compelled by a subpoena.
c. Requisites iii. There are other remedies, such as
i. Test of relevancy: The books, Rule 23—you could take his
documents, or other things deposition. But before that,
requested should appear to be please remember that if a
prima facie relevant subpoena has been issued by the
ii. Test of Definiteness: Such books court, you can file a motion to
must be reasonably described to quash it.
be readily identified.
Witness is not bound thereby: You can also argue that
By whom issued you are not bound by the subpoena. Cite disqualifications.
1. Court before whom the witness is required to There has to be good reason.
attend
2. Court of the place where the deposition is to be For quashing subpoena ad testificandum
taken a. Witness is not bound thereby, or
3. Officer or body authorized by law to do so in b. Witness fees and kilometrage allowed by the ROC
connection with investigations conducted by said were not tendered when the subpoena was served
officer or body, or [Sec. 4, Rule 21]
a. DOJ, Prosecutor, Office of the
Ombudsman, etc.
4. Any justice of the SC or of the CA, in any case or
investigation pending within the Philippines [Sec. 2,
Rule 21]

WHEN APPLIED FOR: Ideally during presentation of

evidence.
• It must be made so as to allow the witness a
reasonable time for preparation and travel to the
place of attendance [Sec. 6, Rule 21]

HOW SERVED: In the same manner as personal or

substituted service of summons. [Section 6, Rule 21]

Quashing a subpoena
For quashing subpoena duces tecum
1. A motion is promptly made and, in any event, at or
before the time specified therein
2. Grounds
a. Subpoena is unreasonable and
oppressive, or
b. Relevancy of the books, documents or
things does not appear, or
c. Person in whose behalf the subpoena is
issued fails to advance the reasonable
cost of the production thereof
d. Witness fees and kilometrage allowed by
these Rules were not tendered when the
subpoena was served [Sec. 4, Rule 21]
i. The person receiving the
subpoena will be informed of his
distance in kilometers from the
place of the hearing, this should

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