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CIVPRO > RULE 12,17-22 > Flashcards

RULE 12,17-22 Flashcards

1
Q

Options available to the **defendant **upon receipt of the complaint

A
  • Filing of a motion for bill of particulars
  • Filing of a motion to dismiss
  • Filing of an answer to the complaint
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2
Q

Purpose of Bill of Particulars:

A
  • To aid in the preparation of a responsive pleading
  • To clarify matters in the complaint which are vague, ambiguous, or not averred with sufficient definiteness.
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3
Q

Can an action be dismissed on the ground that it is vague or indefinite?

A

No. That’s why there’s a motion for bill of particulars.

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4
Q

When is a bill of p filed?

A

Before responding to a pleading.

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5
Q

When Bill of P filed: When is it filed if the pleading is a reply?

A

Motion must be filed within 10 days from service.

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6
Q

Grounds for filing a B of P.

A

It may be for any matter which is not averred with sufficient definiteness or particularly.

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7
Q

What shall the motion point out?

A
  • The defects complained of;
  • The paragraphs wherein they are contained;
  • The details desired.

It must comply with the requirements for motions under Rule 15.

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8
Q

What are the actions of the court when a bill of particulars is filed?

A
  • Grant;
  • Deny it outright; or
  • Hold a hearing therein
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9
Q

What if the motion for a bill of particulars is granted?

A

If the motion is granted, either in whole or in part, the compliance therewith must be effected within ten (10) calendar days from notice of the order

Unless a different period is fixed by the court.

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10
Q

Can it be filed separately?

A

May be filed either in a separate or in an amended pleading.

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11
Q

Effect of Non or insufficient Compliance with order for Bill of Particulars

A
  • The striking out of the pleading or the portion thereof to which the order was directed; or
  • Make such orders as it deems just
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12
Q

Effect of the periof to file a responsive pleading

A

After service of the bill of particulars or after notice of denial of his or her motion, the moving party may file his or her responsive pleading within the period to which he or she was entitled at the time of filing his or her motion, which shall not be less than five (5) .

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13
Q

What dismissals are with prejudice?

A
  • Dismissal upon mere notice without order of the court when filed by a party who was once dismissed in a competent court an action based on or including the same claim. (two rule dismissal)
  • Dismissal by order of the court upon a party’s motion which specifies that the same shall be with prejudice to the filing of a subsequent action based on or including the same claim.
  • Dismissal upon** motion of a defendant** or on the court’s motion upon plaintiff’s failure to prosecute his claim.
  • Dismissal as a result of** plaintiff’s failure to appear during the pre-trial, **unless otherwise ordered by the court.
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14
Q

What dismissals are without prejudice?

A
  • Dismissal for the first time by plaintiff upon mere notice without order of the court.
  • Dismissal by order of the court upon plaintiff’s own motion.
  • Dismissal upon motion of defendant or upon the court’s own motion upon failure to prosecute by plaintiff and the court specifies that the same shall be without prejudice.
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15
Q

Dismissal upon Notice by Plaintiff - When?

A

By filing a notice of dismissal at any time before service of the answer or of a motion for summary judgment

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16
Q

GR and XPN for Dismissal upon Notice by Plaintiff

A
  • Where the notice of dismissal so provides;
  • Where the plaintiff has previously dismissed the same case in a court of competent jurisdiction; **(2-dismissal rule) **
  • Even where the notice of dismissal does not provide that it is with prejudice but it is premised on the fact of payment by the defendant of the claims involved. For the notice of dismissal to be effective, there must be an order confirming the dismissal.
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17
Q

What if the plaintiff moves for the dismissal of the complaint to which a counterclaim has been interposed?

Counterclaim -> prior to the service of the P’s motion for dismissal

A

The dismissal shall be limited to the complaint.

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18
Q

What are the rights of the defendant when he interposes a counterclaim and then there’s a motion to dismiss by plaintiff?

A
  • Prosecute his counterclaim in a separate action; or
  • To have the same resolved in the same action (must manifest within 15 days from notice to him of motion to dismiss)
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19
Q

Dismissal Due to Fault of Plaintiff - Fault of the plaintiff if he, with no justifiable cause:

OR instances when dismissed for failure to prosecute

A
  • Fails to appear on the date of the presentation of his or her evidence in chief on the complaint; or
  • Fails to prosecute his or her action for an unreasonable length of time; or
  • Fails to comply with these Rules or any Court order
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20
Q

When the plaintiff is at** fault **with no justifiable cause, the complaint may be dismissed upon?

A
  • Motion of the defendant; or
  • Court’s own motion, without prejudice to the right of the defendant to prosecute his or her counterclaim in the same or in a separate action.

Ddismissal = adjudication upon the merits, unless otherwise provided.

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21
Q

What other pleadings shall the rule on motion to dismiss apply to?

A

Counterclaim
Cross- claim
Third-party complaint

READ SEC 4 RULE 17 AGAIN

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22
Q

Voluntary dismissal by the claimant by notice shall be made - when?

A
  • before a responsive pleading;
  • before a motion for summary judgment is served; or
  • if there is none, before the introduction of evidence at the trial or hearing.
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23
Q

Effect of dismissal for failure to prosecute

A
  • Effect of an adjudication on the merits and is understood to be with prejudice to the filing of another action unless otherwise provided for in the order of dismissal.
  • As it is an adjudication on the merits, the dismissal should be challenged by appeal within the reglementary period.
24
Q

When is a pre trial called upon by the Court?

A

After filing of the last pleading

Compel the parties **and **their lawyers to appear before it.

25
Q

T or F: A pre-trial is optional

A

F

It is MANDATORY but NOT JURISDICTIONAL

26
Q

T or F: The parties and counsel need not appear in pre trial.

A

F

27
Q

Nature and Purpose of Pre Trial (Sec 2, Rule 18)

A
  • Possibility of an amicable settlement
  • simplification of the issues
  • obtaining stipulations or admissions of facts
  • limitation of the number and identification of witnesses

Memorize this section.

28
Q

How do parties reserve evidence not availble at pre trial?

A
  • For testimonial evidence, by giving the **name or position **and the nature of the testimony of the proposed witness;
  • For documentary evidence and other object evidence, by giving a particular description of the evidence.
29
Q

Consequence of failure without just cause of a party and/or counsel to bring the evidence required.

A

deemed a waiver of the presentation of such evidence.

30
Q

Notice of pre-trial shall include the dates respectively set for:

A
  • Pre-Trial;
  • Court-Annexed Mediation; and
  • Judicial Dispute Resolution, if necessary.
31
Q

On-whom must notice of pretrial be served?

A

Counsel or party, if no counsel

32
Q

Consequence of admissions or stipulations made during pre-trial and stated in pre-trial order

A

Binding upon the party making the admission

33
Q

When can the non-appearance of a party and counsel be excused?

A
  • Valid reasons such as acts of God, force majeure, or duly substantiated physical inability.
  • A representative appears fully authorized in writing.
34
Q

What are the conditions of a representative to appear on behalf of a party during pre trial?

A

He or she must be fully authorized in writing to enter into:

  • To ententer into amicable settlement
  • To submit to alternative modes of dispute resolution and
  • To enter into stipulations or admissions of facts and of documents
35
Q

What must be the form of the authorization allowing a representative to appear on behalf of a party during pre trial?

A

SPA

36
Q

What is the effect of failure of the parties to appear at the pre-trial?

A
  • If the plaintiff and counsel fail to appear without valid cause - action shall be dismissed with prejudice or he is declared non-suited, UNLESS otherwise ordered
  • If the defendant and counsel fail to appear without valid cause - Plaintiff shall be allowed to present his evidence ex parte and the court shall render judgment on the basis thereof
37
Q

EFFECT OF FAILURE TO FILE pre trial brief

A

Shall have the same effect as failure to appear at the pre-trial.

Review PRe Trial brief codal

38
Q

When will the court refer the parties for mandatory court-annexed mediation.

A

After pre-trial and, after issues are joined

39
Q

What is the period for court annexed mediation?

A

The period for court-annexed mediation shall not exceed thirty (30) calendar days without further extension. (n)

40
Q

When does a Judicial Dispute Resolution happen?

A

Only if the judge of the court to which the case was originally raffled is convinced that settlement is still possible

non-extendible period of fifteen (15) calendar days

41
Q

Intervention

A

A legal proceeding by which a person who is not a party to the action is permitted by the court to become a party.

42
Q

Requisites for intervention

A
  • There must be a motion for intervention filed before rendition of judgment
  • Movant must show in his motion that:
    1. He has legal interest in the matter in litigation, in the success of either of the parties in the action, or against both parties
    2. He is situation as to be adversely affected by a distribution or other disposition of property in the custody of the court
  • Intervention must not unduly delay or prejudice the adjudication of the rights of the original parties
  • Intervenor’s rights may not be fully protected in a separate proceeding
43
Q

Legal interest definition (Intervention)

A

One that is actual and material, direct and of immediate character, not merely contingent or expectant

43
Q

Consequence of final dismissal of the principal action (intervention)

A

results in the denial of motion to intervene

44
Q

When can you intervene?

What is the XPN

A

only be filed before judgment is rendered by the trial court

XPN: After judgment to “serve the ends of justice and equity”

45
Q

REMEDY FROM THE DENIAL OF MOTION TO INTERVENE

A

Appeal - not reviewable by certiorari or mandamus

46
Q

Subpoena duces tecum

A

Directed to persons requiring them to bring with him or her any books, documents, or other things under his or her control

47
Q

Subpoena ad testificandum

A

A process directed to a person requiring him or her 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 or her deposition.

48
Q

Who issues a subpoena?

A
  • The court before whom the witness is required to attend
  • The court of the place where the deposition is to be taken
  • The officer or body authorized by law to do so in connection with investigation conducted by said officer or body or
  • Any justice of the SC or CA in any case or investigation pending with the PH
49
Q

Contents of subpoena

A
  • Name of the court
  • Title of the action or investigation
  • Directed to the person whose attendance is required
  • In a case of subpoena duces tecum → contain a reasonable description of the books, documents or things demanded which must appear to the court prima facie relevant
50
Q

How is a servce of subpoena made?

A

Service of a subpoena shall be made in the same manner as personal or substituted service of summons.

Real whole Sec 6, Rule 21

51
Q

In case of failure of a witness to attend, what shall the court do?

A

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 or her deputy, to arrest the witness and bring him or her before the court or office where his or her 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 or her failure to answer the subpoena was willful and without just excuse.

52
Q

Effect of failure by any person without adequate cause to obey a subpoena served upon him

A

Contempt

53
Q

Grounds to quash a subpoena decus tecum:

A
  • it is unreasonable and oppressive
  • relevancy of the books, documents or things does not appear
  • if the person in whose behalf the subpoena is issued fails to advance with reasonable cost of the production thereof.
54
Q

Grounds to quash a subpoena ad testificandum:

A
  • the witness is not bound thereby
  • witness fees and kilometrage allowed by these that the witness fees and kilometrage allowed by these Rules were not tendered when the subpoena was served.
55
Q

In counting a deadline of a pleading or MR or whatever, what is the rule?

A

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.

56
Q

Rule on Computation of Time for Extension?

A

any extension of time to file the required pleading should be counted from the expiration of the period regardless of the fact that said due date is a Sat, Sun or a legal holiday

CIVPRO (9 decks)

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