Atty.

Tranquil Lecture Series

Rule 16
Section 1. Grounds. Within the time for but before filing the answer to the
complaint or pleading asserting a claim, a motion to dismiss may be made on any of
the following grounds:
(a) That the court has no jurisdiction over the person of the defending party;
(b) That the court has no jurisdiction over the subject matter of the claim;
(c) That venue is improperly laid;
Waivable.
(d) That the plaintiff has no legal capacity to sue;
Individual Person authorization
Juridical Entity board resolution
(e) That there is another action pending between the same parties for the
same cause;
(f) That the cause of action is barred by a prior judgment or by the statute of
limitations;
There is a law that prohibits you to enforce your right.
(g) That the pleading asserting the claim states no cause of action;
You just need to look at the complaint.
(h) That the claim or demand set forth in the plaintiff's pleading has been
paid, waived, abandoned, or otherwise extinguished;
(i) That the claim on which the action is founded is enforceable under the
provisions of the statute of frauds; and
(j) That a condition precedent for filing the claim has not been complied with.
Ex. Failure to explore amicable settlement between members of the
family.
Failure to bring the matter to Brgy. Conciliation
Lack of Brgy. certification, though a ground for the dismissal of
the case, does not go into jurisdiction and therefore can be
waived if not timely raised. (Banares vs. Balising)
Non-exhaustion of administrative remedies.
May fall under condition precedent or pleading asserting the
claim does not state a cause of action.
Ex. Dismissal of a student by a school. You need to elevate it
first to the deans office and then to the president of the school.
Note: The court cannot dismiss an action based on improper venue by itself. There
must be a motion by the other part.
Laches, although not enumerated, can also be a ground for the court to dismiss
your case. (You have slept on your rights.)

What cannot be waived? (Rule 9, Section 1)

1. Lack of jurisdiction over the subject matter.
2. Prescription (Statute of Limitations)
 3. Litis Pendentia
4. Res Judicata
The requisites of litis pendentia are:
(a) the identity of parties, or at least such as representing the same interests in
both actions;
(b) the identity of rights asserted and relief prayed for, the relief being founded
on the same facts; and
(c) the identity of the two cases such that judgment in one, regardless of which
party is successful, would amount to res judicata in the other.
In short, requisites of Litis Pendentia are:
1. Identity of parties
2. Identity of issues
3. Identity of reliefs
4. Identity of facts
Requisites of Res Judicata:
1. Identity of parties
2. Identity of issues
3. Identity of reliefs
4. Identity of facts
5. Final judgment

Pleading states no cause of action Lack or absence of cause of action

Must be raised before an answer or in
an answer with an affirmative defense.
There is no other evidence required, the
complaint is sufficient enough to suffice
for the court to determine WON the
pleading states no cause of action.
You are deemed to have hypothetically
admitted the facts stated in the
pleading.
Can be raised at any time.
There is presentation of evidence. If
after presentation of evidence there is
truly no cause of action and the
prosecution has completed the
presentation of its evidence, it will be in
the nature of a demurrer to evidence.

Republic vs Carmel Development (2002)

Doctrine: If there is a hearing of a MTD the evidence presented in the hearing of
the MTD will automatically form part of the evidence of the party presenting the
same in the event the MTD is not granted. The court cannot defer the resolution of a
MTD but can only grant, deny or order an amendment of the complaint.
If the court grants the motion or even deny it should clearly state the facts upon
which it grants or deny the MTD.
Can a denial of a MTD on a MR be questioned thru a petition for certiorari?
 If made thru GADALEJ, yes.

What if the appellate court entertains the petition for certiorari and
instead of denying the MTD grants the same, may the court do so? (RTC
denied MTD / CA granted MTD, reversed RTC decision)
If the CA dismissed it, it is already a final decision. It may, however, remand
the case if it determines there is insufficient evidence for it to render
judgment.
If you file a MTD with an affirmative defense, can you still have a
preliminary hearing of your affirmative defense?
No. The condition for a preliminary hearing is that there was no MTD
previously filed. Affirmative defenses may only be heard
May the grounds of your affirmative defense be used as grounds also for a
MTD?
Yes if enumerated in section 1 of Rule 16, no if it is not enumerated. Rule 16,
section 1 is an exclusive list.
May affirmative defenses in Rule 6 be expanded?
Yes, any ground to prevent or bar recovery may be used as an affirmative
defense.
May the plaintiff cause the dismissal of the case?
Yes, the plaintiff can cause the dismissal of the case.
Two ways:
Before answer and upon notice (not discretionary upon the court
because there is yet no answer) [Limaco vs. Gacuen (2005)]
After answer but upon motion [Ex. Motion to withdraw complaint] (but
left to the discretion of the court)
Case of Tinga
Counterclaim (permissive or compulsory)
If the principal action is dismissed even on the initiative of the
plaintiff, the counterclaim will have to stand based on its own
merits.
Kinds of Dismissal:
1. Motion to Dismiss (initiated by the defendant)
2. Dismissal initiated by the plaintiff
3. Failure to prosecute
Failure to present your evidence in chief (failure to present your
witness on direct examination)
Failure to present your evidence for an unreasonable length of time (in
criminal cases it is speedy trial)
 Failure to comply with an order of the court (Failure to submit your bill
of particulars, or Refused to answer a deposition or respond to written
interrogatories under Rule 25)
Failure to answer to a deposition, even without an order of
the court, may cause your case to be dismissed. (Rule 29)
Failure to comply with the rules (failure to comply with an
execution, ex. Indigent)
4. Demurrer to Evidence (filed by the defendant after the plaintiff has
completed the presentation of its evidence.
Partakes of a MTD.
Do you need to file a leave of court in a civil demurrer?
No. For as long as the plaintiff has completed its
presentation of evidence.
Radiowealth vs. Delrosario (RTC granted demurrer / CA reversed the
dismissal to a demurrer to evidence)
Reversal of a granted demurrer on appeal has the effect
of precluding the defendant of presenting his evidence. The
court can already render its judgment.
Rule 18 Pre-trial
Is pretrial mandatory in civil or criminal cases?
Yes to both.

Once there is an answer, issues are joined, reply is not a mandatory pleading. The
new matters raised in the answer, in the absence of a reply, are deemed as
controverted.
Steps in pretrial
Before the pretrial proper
You will receive a pretrial notice setting the date and time for the pretrial
conference.
You are required to submit a pretrial brief.

Things included in a pretrial brief:

1. Explore possibilities of amicable settlement.
2. Stipulations
3. Admissions
4. Identification of issues
5. To avail of judgment on the pleadings of summary judgment or even modes
of discovery
6. Willingness of referral to commissioners
7. Trial dates
8. Pre-marking of documents
A document not pre-marked during pretrial cannot be presented during
the trial
Except in the interest of justice at the discretion of the court.
 9. Identifying of witnesses
If failure to identify, your witness cannot be presented during trial.
Except in the interest of justice.

When do you need to submit your pretrial brief? (similar to motions)

Received by the other party and filed in court at least 3 days before the date
of the pretrial conference.
Note: There be a preliminary conference as required by the clerk of court. It is a
preliminary conference before the clerk of court.
What happens in a preliminary conference?
1. Stipulation
2. Admission
3. Marking of documents
4. Naming of witnesses
Note: A preliminary conference has minutes and this will form part of the record of
the pretrial.
1st day of Pretrial conference:
There is no pretrial proper yet. The case will be referred to be a mediator, in
the Philippine Mediation Unit of the locality.
If compromise is not successful, the case will returned to court for pretrial
proper. The court will again endeavor the parties to compromise. If
compromise is unsuccessful, there will now be a pretrial proper.
Pretrial Order
Contain all matters discussed in the pretrial conference.
This will dictate the conduct of the trial.

Who is a JDR judge?

From the time the case is raffled after the filing of the complaint until before
the pretrial proper wherein the judge plays as an independent evaluator,
conciliator, mediator.
The parties under the JDR rules are given the option to continue the case with
the JDR judge.
Absence (Alcaraz vs. CA)
Absence of Plaintiff during pretrial (Civil Case)
If the plaintiff is absent during pretrial, the case will be dismissed.
If the plaintiff is present and the lawyer is absent, the case will NOT be
dismissed.
If the lawyer is present but the plaintiff is absent, the case will be dismissed
unless the plaintiff has authorized the lawyer to appear for and in his behalf.
Absence of Defendant during pretrial (Civil Case)
 The plaintiff will be allowed to present ex parte (as in default in the old rule)
What is the remedy of the defendant in an as in default?
o MR
o Motion to set aside on the ground of FAME.

Query:
Do we follow the same rules under the criminal case if the plaintiff is absent?
o No, the rules will not apply. (Rule 118 will apply.)

Absence of offended party in a criminal case during pretrial

The case will not be dismissed as the real party in a criminal case is the
People of the Philippines. The offended party is only a complaining witness,
he is only a witness for the prosecution.
o If, however, offended party repeated absents himself, accused could
invoke his right to a speedy trial.
o If plaintiff is absent trial will be reset.
o If lawyer of plaintiff is absent there can be a sanction as to him

Absence of the accused in a criminal case during pretrial

There will be a warrant of arrest issued.
If you are out on a bond, after being made to explain to the court your
absence, may require the bondsman to surrender your bond.
Note: Any admission to be taken against the accused during the pretrial should be
in writing and signed by the accused and his counsel
MACASAET v. MACASAET
Application of Rule 18, section 4 (plaintiff is absent, case will be dismissed,
defendant, plaintiff is allowed to present evidence ex parte) to Rule 70, section 8
(Ejectment)
Effect of non-submission of pretrial brief, or if you did not serve a copy to
the other party (Civil Case)
It has the same effect as if you were absent. (either plaintiff or defendant)

Rule 19 Intervention
Looyuco vs. CA (when could you apply for intervention?)
At any time before judgment before the trial court.
Intervention is merely a collateral, collateral or ancillary, to the main
proceeding.
 When the main action ceases to exist there is no pending action where
intervention can be heard.
You must have a legal interest.

Can you intervene after judgment has been made?

In exceptional cases, the court may allow intervention.

Director of Lands v. CA
Allowed even if the petition for review was pending before the SC.

Mago v. CA
Case was final and executory, the SC allowed intervention.

Note: In both cases the intervenors were indispensable parties.

Pinlak v. CA
Republic of the Philippines was the intervenor.
Intervention can be allowed even after judgment has been rendered for as
long as the intervenor is an indispensable party.
Limco v. CA
Intervention is allowed in the appellate court if the party is an indispensable
party.

Rule 21 (Subpoena)
2 Kinds:
1. Subpoena ad testificandum
To appear and testiy
2. Subpoena duces tecum
To appear and bring the books, documents and papers.

Enumerate the instances when you can file a motion to Quash.

1. Subpoena
2. Search Warrant
3. Rule 117 to Quash an Information
4. Writ of Execution
Grounds to Quash a Subpoena ad Testificandum
1. You are not bound to testify if
Privileged communication
Failure to tender kilometrage (distance of the witness from the court
should not exceed 100 kms)
 Witness is more than 100kms, his appearance cannot be
compelled by contempt or by a bench warrant.
What is a bench warrant?
It is a warrant that emanates from the authority of the
court to compel appearance before the court that
witnesses cannot thwart the authority of the court. You do
not need to have a case filed in court for the court to
issue a bench warrant against you.
Witness fees for transportation

Grounds to Quash a Subpoena ad Testificandum

Unreasonable
Oppressive
Requirement to present documents is irrelevant
There was not tender of cost of production
There was no tender of kilometrage and witness fees
The books, documents and papers were not described.

Polyado vs. Bravo

Issue: Absent an action (court action) can a subpoena be issued?
o No, you cannot.

Note: Prosecutor, NBI, Ombudsman, Senate in the exercise of its powers in aid of
legislation can issue a subpoena.
What if the witness is more than 100kms from the place where the hearing
is to be conducted?
No.

What is your remedy?

Deposition.

Rules 23-28 (Deposition)

Can the modes of discovery be used in criminal actions?
Yes.

Note: Modes of discovery is more generic than deposition.

Can you use deposition in special proceedings?
Yes. Ordinary rules on deposition will have suppletory application.

Can you apply for deposition even after pretrial?

Yes.
Rule 23 (Deposition Pending Action)
Can you apply for deposition before action?
Yes. It is called perpetuation of testimony.

How to initiate an application for deposition?

Section 1, Rule 23.

After the court acquires jurisdiction and before answer

You file a motion to take deposition.

After the court acquires jurisdiction and after answer

You file a notice to take deposition.

Compared to an amendment of a pleading:

Before answer
You file a notice to amend your pleading.

After answer
You file a motion to amend your pleading.

General Purpose of a deposition:

To be able to elicit facts thru the various modes that you have.
Once summons have been issued the court is duty bound to issue an order
requiring the parties to avail of Rules 23, 25, 26 and 27.
Note:
1. A delay is not a reason to cancel a scheduled deposition.
2. Undue duplicity is not a ground to defer a deposition because it is only a
mode of discovery.
It does not mean that if you take the deposition of a person, you make
him as your witness.
Under what grounds may a deposition be disallowed or opposed?
1. Application was made in bad faith
2. The facts subject of the deposition is privileged.
3. It is not a material or relevant fact.
4. It is to annoy, embarrass or oppress the deponent.
Is the fact that the deponent is available for trial a ground for not taking
his deposition?
No. Because deposition is merely a mode of discovery.
Hyatt Case
Deposition serves a double function:
o A method of discovery.
o A method of presenting testimony.

Note: Relevancy and privilege nature are grounds to limit the taking of deposition.
Bar 2008:
Lawyer started talking to witnesses and taking affidavits. The other lawyer applied
for the taking of the deposition of the other lawyer. Should this be allowed?
No. It is privileged. The information is already taken by the lawyer by reason
of his engagement with his client.
What are the uses of deposition?
1. To be used to impeach a witness.
a. Prior inconsistent statements
2. Any purpose by any party.
3. Deposition can be used if the deponent is dead. (it is hearsay but it falls
under the exception)
4. Deposition taken or given in another proceeding can be used as long as there
is an opportunity to cross-examine. (Partner provision is Rule 115, section 1F)
Before whom should deposition be taken?
Domestic
1. Any judge
2. Notary public
3. Before any officer authorized to administer oaths as stipulated by the parties.
Foreign
1. Consul
2. Vice Consul
3. Secretary of Legation
4. Letters Rogatory or Commission
Dulay v. Dulay CASE
Letters Rogatory
It is a communication from one judicial authority to another.

If a court in Boston entertains the letter of RTC Quezon City, what rule
shall be followed in the taking of deposition?
The rules in the foreign country.

Letters Commission
 It is an appointment by the court of a person outside the Philippines to take
the deposition of another. The rules of the Philippines on the taking of a
deposition will be followed.
If you take the deposition of a person does it make him your witness?
NO.

Note: The deposition draft will have to be presented to the deponent.

The deponent will have to review the same and affix his signature. If the deponent
refuses, it can still be submitted if the reason for the refusal of the deponent is
indicated.
Can the signing of the deponent be waived?
Yes if the party agreed.

Duty of the deposition officer?

Put the deposition inside a sealed envelope with the proper marking on the
dorsal portion indicating the name of the person whose deposition was taken.
Note: The deposition can only be submitted by the deposition officer, not by the
plaintiff nor the defendant.
Non-compliance will expose the deposition to a motion to suppress deposition.
(Rule 23, section 29, subsection F)
Ayala Land vs. Tago
Taking of deposition is before a judge in the court where the action is
pending, the strict rules need not apply.
Strict manner in taking a deposition applies only if the deposition was taken
outside the courts.
Disqualifications of a deposition officer:
1. Financial Interest
2. Related within the 6th degree of consanguinity or affinity of a party, counsel or
employee.
3. Lawyer is related to the officer within the 6 th degree affinity of affinity or
consanguinity.