NOTES on REMLAW1 (under ATTY.

OBRA) transcribed by: GUSI, Audrey

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NOTES on REMLAW1 (under ATTY. OBRA) transcribed by: GUSI, Audrey

RULE 15

Motions

Section 1. Motion defined. — A motion is an application for relief other than by a pleading. (1a)

PLEADING MOTION
-written statement claims/defenses -not pleading
(ANSWER/REPLY) VS. Application for relief other than
=cannot be oral or verbal pleading
-may be in writing or verbal
[except those which may be made in
open court/during trial or hearing
course of hearing or trial]
OPEN COURT -> presence of judge,
court officers and adverse party

2 Kinds of MOTION

1. LITIGATED MOTIONS – is one which if granted by court will adversely affect the substantial rights of
the other party.
- required to be set for hearing, furnish other party a copy before he files a motion (MOTION should
include a notice of hearing)

2. NON LITIGATED MOTIONS – if not substantial right is affected or will not adversely affect the rights

Section 2. Motions must be in writings. — All motions shall be in writing except those made in
open court or in the course of a hearing or trial. (2a)

Section 3. Contents. — A motion shall state the relief sought to be obtained and the grounds
upon which it is based, and if required by these Rules or necessary to prove facts alleged therein,
shall be accompanied by supporting affidavits and other papers. (3a)

Section 4. Hearing of motion. — Except for motions which the court may act upon without
prejudicing the rights of the adverse party, every written motion shall be set for hearing by the
applicant.

Every written motion required to be heard and the notice of the hearing thereof shall be served in
such a manner as to ensure its receipt by the other party at least three (3) days before the date of
hearing, unless the court for good cause sets the hearing on shorter notice. (4a)

Section 5. Notice of hearing. — The notice of hearing shall be addressed to all parties
concerned, and shall specify the time and date of the hearing which must not be later than ten
(10) days after the filing of the motion. (5a)

Section 6. Proof of service necessary. — No written motion set for hearing shall be acted upon
by the court without proof of service thereof. (6a)

Section 7. Motion day. — Except for motions requiring immediate action, all motions shall be
scheduled for hearing on Friday afternoons, or if Friday is a non-working day, in the afternoon of
the next working day. (7a)

Section 8. Omnibus motion. — Subject to the provisions of section 1 of Rule 9, a motion

attacking a pleading, order, judgment, or proceeding shall include all objections then available,
and all objections not so included shall be deemed waived. (8a)

Section 9. Motion for leave. — A motion for leave to file a pleading or motion shall be
accompanied by the pleading or motion sought to be admitted. (n)

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NOTES on REMLAW1 (under ATTY. OBRA) transcribed by: GUSI, Audrey

Section 10. Form. — The Rules applicable to pleadings shall apply to written motions so far as
concerns caption, designation, signature, and other matters of form. (9a)

RULE 16

Motion to Dismiss

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;

(d) That the plaintiff has no legal capacity to sue;

(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;

(g) That the pleading asserting the claim states no cause of action;

(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. (1a)

Section 2. Hearing of motion. — At the hearing of the motion, the parties shall submit their
arguments on the questions of law and their evidence on the questions of fact involved except
those not available at that time. Should the case go to trial, the evidence presented during the
hearing shall automatically be part of the evidence of the party presenting the same. (n)

Section 3. Resolution of Motion. — After the hearing, the court may dismiss the action or claim,
deny the motion, or order the amendment of the pleading.

The court shall not defer the resolution of the motion for the reason that the ground relied upon is
not indubitable.

In every case, the resolution shall state clearly and distinctly the reasons therefor. (3a)

Section 4. Time to plead. — If the motion is denied, the movant shall file his answer within the
balance of the period prescribed by Rule 11 to which he was entitled at the time of serving his
motion, but not less than five (5) days in any event, computed from his receipt of the notice of
the denial. If the pleading is ordered to be amended, he shall file his answer within the period
prescribed by Rule 11 counted from service of the amended pleading, unless the court provides a
longer period. (4a)

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Section 5. Effect of dismissal. — Subject to the right of appeal, an order granting a motion to
dismiss based on paragraphs (f), (h) and (i) of section 1 hereof shall bar the refiling of the same
action or claim. (n)

Section 6. Pleading grounds as affirmative defenses. — If no motion to dismiss has been filed,
any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative
defense in the answer and, in the discretion of the court, a preliminary hearing may be had
thereon as if a motion to dismiss had been filed. (5a)

The dismissal of the complaint under this section shall be without prejudice to the prosecution in
the same or separate action of a counterclaim pleaded in the answer. (n)

RULE 17

Dismissal of Actions

Section 1. Dismissal upon notice by plaintiff. — A complaint may be dismissed by the plaintiff
by filing a notice of dismissal at any time before service of the answer or of a motion for
summary judgment. Upon such notice being filed, the court shall issue an order confirming the
dismissal. Unless otherwise stated in the notice, the dismissal is without prejudice, except that a
notice operates as an adjudication upon the merits when filed by a plaintiff who has once
dismissed in a competent court an action based on or including the same claim. (1a)

Section 2. Dismissal upon motion of plaintiff. — Except as provided in the preceding section, a
complaint shall not be dismissed at the plaintiff's instance save upon approval of the court and
upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by
a defendant prior to the service upon him of the plaintiffs motion for dismissal, the dismissal
shall be limited to the complaint. The dismissal shall be without prejudice to the right of the
defendant to prosecute his counterclaim in a separate action unless within fifteen (15) days from
notice of the motion he manifests his preference to have his counterclaim resolved in the same
action. Unless otherwise specified in the order, a dismissal under this paragraph shall be without
prejudice. A class suit shall not be dismissed or compromised without the approval of the court.
(2a)

Section 3. Dismissal due to fault of plaintiff. — If, for no justifiable cause, the plaintiff fails to
appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute
his action for an unreasonable length of time, or to comply with these Rules or any order of the
court, the complaint may be dismissed upon motion of the defendant or upon the court's own
motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same
or in a separate action. This dismissal shall have the effect of an adjudication upon the merits,
unless otherwise declared by the court. (3a)

Section 4. Dismissal of counterclaim, cross-claim, or third-party complaint. — The provisions

of this Rule shall apply to the dismissal of any counterclaim, cross-claim, or third-party
complaint. A voluntary dismissal by the claimant by notice as in section 1 of this Rule, shall be
made before a responsive pleading or a motion for summary judgment is served or, if there is
none, before the introduction of evidence at the trial or hearing. (4a)

RULE 18

Pre-Trial

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Section 1. When conducted. — After the last pleading has been served and filed, if shall be the
duty of the plaintiff to promptly move ex parte that the case be set for pre-trial (5a, R20)

Section 2. Nature and purpose. — The pre-trial is mandatory. The court shall consider:

(a) The possibility of an amicable settlement or of a submission to alternative modes of

dispute resolution;

(b) The simplification of the issues;

(c) The necessity or desirability of amendments to the pleadings;

(d) The possibility of obtaining stipulations or admissions of facts and of documents to

avoid unnecessary proof;

(e) The limitation of the number of witnesses;

(f) The advisability of a preliminary reference of issues to a commissioner;

(g) The propriety of rendering judgment on the pleadings, or summary judgment, or of

dismissing the action should a valid ground therefor be found to exist;

(h) The advisability or necessity of suspending the proceedings; and

(i) Such other matters as may aid in the prompt disposition of the action. (1a, R20)

Section 3. Notice of pre-trial. — The notice of pre-trial shall be served on counsel, or on the
party who has no counsel. The counsel served with such notice is charged with the duty of
notifying the party represented by him. (n)

Section 4. Appearance of parties. — It shall be the duty of the parties and their counsel to appear
at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown
therefor or if a representative shall appear in his behalf 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 of documents. (n)

Section 5. Effect of failure to appear. — The failure of the plaintiff to appear when so required
pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal
shall be with prejudice, unless other-wise ordered by the court. A similar failure on the part of
the defendant shall be cause to allow the plaintiff to present his evidence ex parte and the court
to render judgment on the basis thereof. (2a, R20)

Section 6. Pre-trial brief. — The parties shall file with the court and serve on the adverse party,
in such manner as shall ensure their receipt thereof at least three (3) days before the date of the
pre-trial, their respective pre-trial briefs which shall contain, among others:

(a) A statement of their willingness to enter into amicable settlement or alternative modes
of dispute resolution, indicating the desired terms thereof;

(b) A summary of admitted facts and proposed stipulation of facts;

(c) The issues to be tried or resolved;

(d) The documents or exhibits to be presented stating the purpose thereof;

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(e) A manifestation of their having availed or their intention to avail themselves of

discovery procedures or referral to commissioners; and

(f) The number and names of the witnesses, and the substance of their respective
testimonies.

Failure to file the pre-trial brief shall have the same effect as failure to appear at the pre-trial. (n)

Section 7. Record of pre-trial. — The proceedings in the pre-trial shall be recorded. Upon the
termination thereof, the court shall issue an order which shall recite in detail the matters taken up
in the conference, the action taken thereon, the amendments allowed to the pleadings, and the
agreements or admissions made by the parties as to any of the matters considered. Should the
action proceed to trial, the order shall, explicitly define and limit the issues to be tried. The
contents of the order shall control the subsequent course of the action, unless modified before
trial to prevent manifest injustice. (5a, R20)

RULE 19

Intervention

Section 1. Who may intervene. — A person who has a legal interest in the matter in litigation, or
in the success of either of the parties, or an interest against both, or is so situated as to be
adversely affected by a distribution or other disposition of property in the custody of the court or
of an officer thereof may, with leave of court, be allowed to intervene in the action. The court
shall consider whether or not the intervention will unduly delay or prejudice the adjudication of
the rights of the original parties, and whether or not the intervenor's rights may be fully protected
in a separate proceeding. (2[a], [b]a, R12)

Section 2. Time to intervene. — The motion to intervene may be filed at any time before
rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached
to the motion and served on the original parties. (n)

Section 3. Pleadings-in-intervention. — The intervenor shall file a complaint-in-intervention if

he asserts a claim against either or all of the original parties, or an answer-in-intervention if he
unites with the defending party in resisting a claim against the latter. (2[c]a, R12)

Section 4. Answer to complaint-in-intervention. — The answer to the complaint-in-intervention

shall be filed within fifteen (15) days from notice of the order admitting the same, unless a
different period is fixed by the court. (2[d]a, R12)

RULE 20

Calendar of Cases

Section 1. Calendar of cases. — The clerk of court, under the direct supervision of the judge,
shall keep a calendar of cases for pre-trial, for trial, those whose trials were adjourned or
postponed, and those with motions to set for hearing. Preference shall be given to habeas
corpuscases, election cases, special civil actions, and those so required by law. (1a, R22)

Section 2. Assignment of cases. — The assignment of cases to the different branches of a court
shall be done exclusively by raffle. The assignment shall be done in open session of which

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adequate notice shall be given so as to afford interested parties the opportunity to be present. (7a,
R22)

RULE 21

Subpoena

Section 1. Subpoena and subpoena duces tecum. — Subpoena is a process directed to a person
requiring him to attend and to testify at the hearing or the trial of an action, or at any
investigation conducted by competent authority, or for the taking of his deposition. It may also
require him to bring with him any books, documents, or other things under his control, in which
case it is called a subpoena duces tecum. (1a, R23)

Section 2. By whom issued. — The subpoena may be issued by —

(a) the court before whom the witness is required to attend;

(b) the court of the place where the deposition is to be taken;

(c) the officer or body authorized by law to do so in connection with investigations

conducted by said officer or body; or

(d) any Justice of the Supreme Court or of the Court of Appeals in any case or
investigation pending within the Philippines.

When application for a subpoena to a prisoner is made, the judge or officer shall examine and
study carefully such application to determine whether the same is made for a valid purpose.

No prisoner sentenced to death, reclusion perpetua or life imprisonment and who is confined in
any penal institution shall be brought outside the said penal institution for appearance or
attendance in any court unless authorized by the Supreme Court (2a, R23)

Section 3. Form and contents. — A subpoena shall state the name of the court and the title of the
action or investigation, shall be directed to the person whose attendance is required, and in the
case of a subpoena duces tecum, it shall also contain a reasonable description of the books,
documents or things demanded which must appear to the court prima facie relevant. (3a, R23)

Section 4. Quashing a subpoena. — The court may quash a subpoena duces tecum upon motion
promptly made and, in any event, at or before the time specified therein if it is unreasonable and
oppressive, or the relevancy of the books, documents or things does not appear, or if the person
in whose behalf the subpoena is issued fails to advance the reasonable cost of the production
thereof.

The court may quash a subpoena ad testificandum on the ground that the witness is not bound
thereby. In either case, the subpoena may be quashed on the ground that the witness fees and
kilometrage allowed by these Rules were not tendered when the subpoena was served. (4a, R23)

Section 5. Subpoena for depositions. — Proof of service of a notice to take a deposition, as

provided in sections 15 and 25 of Rule 23, shall constitute sufficient authorization for the
issuance of subpoenas for the persons named in said notice by the clerk of the court of the place
in which the deposition is to be taken. The clerk shall not, however, issue a subpoena duces
tecum to any such person without an order of the court. (5a, R23)

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Section 6. Service. — Service of a subpoena shall be made in the same manner as personal or
substituted service of summons. The original shall be exhibited and a copy thereof delivered to
the person on whom it is served, tendering to him the fees for one day's attendance and the
kilometrage allowed by these Rules, except that, when a subpoena is issued by or on behalf of
the Republic of the Philippines or an officer or agency thereof, the tender need not be made. The
service must be made so as to allow the witness a reasonable time for preparation and travel to
the place of attendance. If the subpoena is duces tecum, the reasonable cost of producing the
books, documents or things demanded shall also be tendered. (6a, R23)

Section 7. Personal appearance in court. — A person present in court before a judicial officer
may be required to testify as if he were in attendance upon a subpoena is sued by such court or
officer. (10, R23)

Section 8. Compelling attendance. — In case of failure of a witness to attend, the court or judge
issuing the subpoena, upon proof of the service thereof and of the failure of the witness, may
issue a warrant to the sheriff of the province, or his deputy, to arrest the witness and bring him
before the court or officer where his attendance is required, and the cost of such warrant and
seizure of such witness shall be paid by the witness if the court issuing it shall determine that his
failure to answer the subpoena was willful and without just excuse. (11, R23)

Section 9. Contempt. — Failure by any person without adequate cause to obey a subpoena
served upon him shall be deemed a contempt of the court from which the subpoena is issued. If
the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance
with the applicable law or Rule. (12a R23)

Section 10. Exceptions. — The provisions of sections 8 and 9 of this Rule shall not apply to a
witness who resides more than one hundred (100) kilometers from his residence to the place
where he is to testify by the ordinary course of travel, or to a detention prisoner if no permission
of the court in which his case is pending was obtained. (9a, R23)

RULE 22

Computation of Time

Section 1. How to compute time. — In computing any period of time prescribed or allowed by
these Rules, or by order of the court, or by any applicable statute, the day of the act or event from
which the designated period of time begins to run is to be excluded and the date of performance
included. If the last day of the period, as thus computed, falls on a Saturday a Sunday, or a legal
holiday in the place where the court sits, the time shall not run until the next working day. (a)

Section 2. Effect of interruption. — Should an act be done which effectively interrupts the
running of the period, the allowable period after such interruption shall start to run on the day
after notice of the cessation of the cause thereof.

The day of the act that caused the interruption shall be excluded in the computation of the period.
(n)