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REM CONTINUATION REV

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Period to respond to a supplemental pleading – 10 days from notice of order admitting the supplemental
pleading
DEFAULT
Did not file Answer
There’s proof of such failure (show the Return)
File MOTION with proper notice to defending party
Court may RENDER JUDGMENT or REQUIRE SUBMISSION of evidence
REMEDY: File a MOTION to set aside or lift on the following grounds: FAME (same extrinsic fraud for
needed for motion for new trial, petition for relief from judgment, and motion for annulment of
judgment)
This must be accompanied by a verification (under oath), affidavit of merit (that you have a good
defense), and notice of hearing. If this is missing, the motion is lost.
JUDGEMENT BY DEFAULT
Remedy:
1. Motion for Reconsideration or Motion for New Trial (FAME) - within period for filing an appeal
2. Petition for relief from judgment (after the reglementary period for appeal; i.e. when there is entry of
judgment)
Period: 6 months from entry of judgment AND within 60 days from knowledge
3. Rule 65 certiorari (If there is GADALEJ)
BILL OF PARTICULARS
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.
When: Before responding to a pleading.(Kasi if may pleading na, issues have already been JOINED).
If the pleading is a Reply: within 10 days from service thereof.
Court Action: Grant, deny, or allow the parties to be heard
If granted: party shall comply within 10 days.
Noncompliance:
Court may order to strike out the pleading or any portion thereof
The case can be dismissed (Virata v. SB) – Rule 17, Sec 3: non-compliance with court order
FILING AND SERVICE OF PLEADINGS
Filing Modes: Personal, Registered mail
Service Modes: Personal, Registered Mail, Ordinary Mail
If the person to whom you are serving is not available, then how do you file substituted service?
Delivery to the clerk of court with proof of failure of both personal service and service by mail. This is
different from substituted service of summons, which is to a person of suitable age and discretion
residing in the same residence.
SUMMONS
Content:
1. Name of court and names of parties
2. Direction to answer within required time
3. Notice that no answer can lead to judgment by default
Remember: at least three times on two different days (try to serve)
If you file a complaint and you don’t see to it that the summons is served, your complaint can be
dismissed for failure to prosecute.
“In charge” for corporation and hence may receive summons (in case of substituted service): President,
General Manager, Managing Partner, Corporate Secretary, Corporate Treasurer, In-house Counsel.
Section 15: Defendant that does not reside in the Philippines and is not found in the Philippines.
In what subject matter?
1. Involving personal status of the defendant
2. Property of non-resident defendant
3. Property is attached
4. Where defendant has actual or contingent interest over property
What are the modes of service?
1. Personal service outside the Philippines
2. Publication AND service by registered mail in his last known address
N.B. Both must concur. Take note of this.
3. Other modes deemed applicable by the court
Time to Answer the complaint: Reasonable time determined by court, which must not be less than 60
days from notice.
Section 16: Temporarily absent from the Philippines
How do you do serve summons?
1. Personal service outside the Philippines
2. Publication AND service by registered mail in his last known address
N.B. Both must concur. Take note of this.
3. Other modes deemed applicable by the court
4. Substituted service, if there is impossibility and there are earnest efforts to serve.
Sections 14 to 16: With leave of court to allow service of summons by publication.
MOTION
Does a motion to dismiss take the nature of an answer? No, because it will not lead to a joinder of issues
What does EVERY motion need to have?
A notice of hearing.
Directed to whom?
To parties (But also give notice to the clerk of court (even if the provision does not say it),
because he schedules the hearings).
The motion must be filed in court and served to the other party at least three days before the date of
hearing. (Three day notice rule)
Ten day rule: The hearing itself must be scheduled no later than 10 days from the filing of the motion
Ex. you file it December 6. The last date you can set the hearing for is December 16.
Omnibus Motion rule: Include all grounds available, otherwise deemed waived.
Motion Day:
Friday afternoon.
If it is a holiday, set it on the next working day
MOTION TO DISMISS
Lack of J over the SM
Lack of J over the person
Improper venue
No legal capacity to sue
Minor – age of majority
Corporation – must be duly registered with SEC
Attorney in fact – look into scope of authority
Pleading Asserting the Claim States no COA
Res Judicata
1. Final judgment
2. J over SM and person
3. Judgment on merits
4. Identity of parties, SM, cause of action
Litis pendentia
Prescription
Failure to comply with condition precedent
PWEA (Payment, Waiver, Extinguishment, Abandonment)
Unenforceable under Statute of Frauds
Of all these grounds, if the court dismisses, can it be re-filed?
ALL
Except – [F,H,I]
1. Prescription
2. Unenforceable under Statute of Frauds
3. Res judicata
4. Extinguish of claim or demand (PWEA)
When to file a Motion to dismiss? Within the reglementary period. Fifteen days.
Court Action:
1. Dismiss action or claim
2. Deny the motion
3. Order amendment of the pleading
Court mistakenly denies your MTD, what is your remedy? Petition for certiorari on Rule 65 based on
GADALEJ.
DISMISSAL OF ACTIONS
A notice of dismissal
When: any time before the answer is served (or before his motion for summary judgment, if applicable).
Dismissal is a matter of right.
If there’s already an answer, then file a MOTION TO DISMISS.
Dismissal due to the fault of the plaintiff (Upon motion or motu propio)
1. Plaintiff fails to appear on the date of presentation of his evidence in chief without just cause
2. Failure to prosecute his action for an unreasonable length of time
3. Failure to comply with the ROC or any order of the court
Effect: Adjudication upon the merits.
PRE-TRIAL
Conducted within 5 days after last pleading has been filed
File Pre-trial brief. Failure to do so: same effect as non-appearance.
INTERVENTION
Requisites:
1. Either:
a. Legal interest in the matter in controversy
b. Legal interest in the success in either of the parties
c. Legal interest against both
d. Will be adversely affected by distribution or disposition of property in the custody of the court
2. Intervention will not unduly delay or prejudice the adjudication of rights of the original parties
3. Intervenor’s rights may not be fully protected in a separate proceeding
How?
File a Motion to Intervene
Attach the pleading-in-intervention
When? Any time before rendition of judgment in the trial court. For an indispensable party, the court will
allow intervention even after judgment.
REMEDY:
If denied: Aggrieved party must appeal.
Mandamus will not lie except in case of GADALEJ
If granted: Petition for certiorari (since the order is interlocutory, unlike the dismissal of the
complaint/answer-in-intervention, which is final.
SUBPOENA:
Quash (Subpoena Ad Testificandum):
Witness is not bound thereby
Witness fees and kilometrage allowed by the Rules were not tendered
•
Witness must live within 100 KM of the place where hearing is conducted
Quash (Subpoena Duces Tecum)
1. Unreasonable and oppressive
2. Relevancy of the books, documents, etc. does not appear
3. Failure to tender the costs of production
4. Kilometrage/witness fees
5. Failure to describe with particularity
DEPOSITIONS
So that litigants and lawyers cannot suppress information, and so that all information needed for a just
decision is on the table.
What can be the subject? As long as (1) relevant and (2) not privileged, and it must be in (3) good faith
When can you avail of Modes of Discovery?
 Any time, even during execution
When do you need leave of court, and when do you not?
Prior to filing of the answer, you need leave of court. The issues for contention have not yet been joined.
You don’t exactly know yet what is germane to the case.
After filing of the answer, no need for leave of court.
Contrast with amendments: You need leave of court after answer; before answer, you just need notice.
How is it used in trial?
®To impeach or contradict the testimony of the deponent as witness
®Can be used by one party against an adverse party (including responsible officers of corporation as
adverse party) of for any purpose
WIDEST discretion.
®Can be used to support own evidence, can be used to impeach, etc.
® Used in place of oral testimony, when:
A) Witness-deponent is dead
B) Resides more than 100KM away, except if the party calling that witness procured the party’s absence
or out of the Philippines
C) Unable to attend due to age, sickness, imprisonment, etc.
D) Unable to compel attendance of the witness through a subpoena
E) Exceptional circumstances
Take note that for this ground, there must be application and notice to the court, since it has to decide
whether exceptional circumstances exist.
Party can present a part of the deposition. Right of other party: Right to compel the introduction of the
rest of the deposition relevant to the fact in issue.
Before whom can a deposition be taken?
A. If in Philippines:
1. Judge
2. Notary public
3. Any person agreed upon by the parties, as long as he can administer oaths
o
B. Outside the Philippines:
1. Embassy, legation, consul, consular agent
2. Any person
•
By commission
•
Letters rogatory
3. Any person agreed upon by the parties, as long as he can administer oaths
Who are disqualified to be deposition officers? [Memorize; this has not yet been asked]
o
1. Sixth degree of consanguinity from party
o
2. Employee or counsel of party
o
3. Sixth degree of consanguinity or employee of party’s counsel
o
4. Financially interested in the action
process to take deposition?
Rule 23, Sections 19-21
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