What Is A Demurrer In Law?

What Is A Demurrer In Law
A demurrer challenges a complaint by asserting that the complaint at issue should be dismissed because it fails to state sufficient facts to constitute a cause of action.

What is a demurrer in California law?

A demurrer is a legal objection to the sufficiency of a pleading, attacking what appears on the face of the document and seeking dismissal of a case against the defendant. The demurrer must be made in open court before a plea is entered unless the court allows it to be made at a later time.

  1. If a demurrer is sustained, the court must permit the defect to be remedied (if it can be remedied) within 10 calendar days, or, if the defect cannot be remedied by amendment, the court must direct the filing of a new complaint or information, or the submission of the case to the grand jury.
  2. However, the pleading cannot be amended to charge an offense that was not charged in the initial complaint or for which evidence was not adduced at the preliminary hearing, because that would prejudice the accused.

If a demurrer to a complaint is sustained without leave to amend, or if a demurrer is sustained with leave to amend but no amendment is made within the time fixed, the action must be dismissed. In California, according to Penal Code section 1004, the defendant can demur to the accusatory pleading at any time prior to the entry of a plea, when it appears on the face thereof either:

If an indictment, that the grand jury by which it was found had no legal authority to inquire into the offense charged If an information or complaint, that the court has no jurisdiction of the offense charged If an indictment or information that it does not substantially conform to various provisions in the penal code That more than one offense is charged That the facts stated do not constitute a public offense That the accusatory pleading contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other legal bar to the prosecution.

Is a demurrer a motion California?

Civil cases – A demurrer is commonly filed by a defendant in response to a complaint filed by the plaintiff, A demurrer to a complaint can terminate a lawsuit. Although a plaintiff may demur to a defendant’s answer to a complaint or the defendant’s affirmative defenses, a demurrer to an answer is less common because it may be a poor strategic move,

A demurrer to an answer may simplify a lawsuit, but it usually will not end the lawsuit; it is normally used only when the plaintiff intends to move for summary judgment in their favor at the earliest opportunity and needs to preemptively attack some of the defendant’s affirmative defenses. Technically, a demurrer is not a motion ; a party does not file a motion for demurrer nor move the court to demur.

Rather, a demurrer is a particular type of pleading and demurring is the act by which a party formally requests the court to dismiss a cause of action (claim) or the entire complaint. In lay terms, a judge who sustains a demurrer is saying that the law does not recognize a legal claim for the facts stated by the complaining party.

If the judge overrules a demurrer, the court is allowing the claim or case to proceed. In legal terms, the demurring party asserts that the complaint or counterclaim does not amount to a legally valid claim, even if the factual allegations contained in the complaint or counterclaim are accepted as true.

Usually, a demurrer attacks a complaint as missing one or more required elements of a claim. Those elements are usually attacked by showing that the plaintiff failed to plead an essential element per se or facts that adequately support it (e.g., facts giving rise to an actionable duty running from the defendant to the plaintiff).

Another method is to attack the entire cause of action itself as abolished or prohibited as against public policy (e.g., wrongful life is against public policy in most jurisdictions). Demurrers are decided by a judge rather than a jury, The judge either grants the demurrer by sustaining it, or denies it by overruling the demurrer.

If the demurrer is overruled, the defendant is ordered to file an answer within a certain period of time or else risk a default judgment, Once the answer is filed, then the case is said to be “at issue” (because there are now a complaint and answer on file opposing each other with the parties’ respective provisions), and the case proceeds to the discovery stage.

  • In the alternative, a judge may sustain a demurrer with prejudice or without prejudice.
  • With prejudice means the plaintiff cannot file another complaint attempting to fix insufficiencies of the previous complaint.
  • If the demurrer is granted without prejudice and/or with leave to amend, then the plaintiff may correct errors filing a corrected and/or amended complaint.

Demurrers sustained with prejudice are reserved for when the judge determines a plaintiff cannot cure or fix the complaint by rewriting or amending it. Depending upon the severity of the defect in a complaint, a court may sustain with prejudice on the first demurrer (very rare) or allow the plaintiff as many as three or four attempts before sustaining a demurrer to a third or fourth amended complaint with prejudice.

What is the purpose of demurrer?

A demurrer challenges a complaint by asserting that the complaint at issue should be dismissed because it fails to state sufficient facts to constitute a cause of action.

How do you win a demurrer?

How to Deal With Aggressive Lawsuits: A Strategy At Buffington Law Firm, our civil trial attorneys are probably asked this question more than almost any other by clients who have flimsy or groundless lawsuits brought against them: “Why can’t I get this frivolous lawsuit thrown out before trial?” The question is, for many cases, understandable.

It is far from uncommon that a plaintiff files a lawsuit against a defendant when the lawsuit is weak on the law and even weaker on the facts. When this happens the person being sued needs an attorney and, understandably, demands action. No one wants to be entangled in a lawsuit as a defendant one second longer than necessary.

While there are numerous types of procedures for attacking a lawsuit prior to trial, the two most common in California State Superior Court are a “Demurrer” and a “Motion for Summary Judgment.” We will touch only briefly on the details of these two procedures (each of which will be the subject of more detailed individual Blog articles later).

Suffice to say that a Demurrer is brought as a motion before the court at the beginning of a lawsuit as an attempt to attack all or some of a lawsuit, while a Motion for Summary Judgment is usually brought later in the case, (but still prior to actual trial) after discovery has taken place and key depositions have been taken.

Put simply, without legalese, a Demurrer is usually the first responsive pleading that the defense files if defense counsel decides to attack the Plaintiff’s Complaint at all. Boiled down to its essentials, to be successful a Demurrer must show two things with respect to the Plaintiff’s cause (or causes) of action i.e.

  • The grounds for their lawsuit.
  • Firstly, the Defense must show that even if the Court accepts all of the facts that the plaintiff alleges in the Complaint without any proof by the Plaintiff as true ; it is still the case that b) the Plaintiff still fails to state a legal claim against the Defendant.
  • Right there it is obvious that Demurrers are hard for the Defense to win.

The Plaintiff is not required to actually prove anything to win a Demurrer — he or she can simply allege facts without proof, and usually so long as these facts, if true would constitute a valid claim, the Plaintiff will defeat the Demurrer. In actual court, Demurrers rarely result in the dismissal of a lawsuit, although sometimes they may successfully remove parts of it.

A Motion for Summary Judgement (“MSJ”), unlike a Demurrer, does take substantial evidence into account and is almost always filed later in the case, after the attorneys have developed the case evidence. To succeed, an MSJ must prove essentially that: a) the facts support the moving party’s case (e.g.

the Defense) and the Plaintiff has no admissible evidence to controvert these facts; and b) given the facts that are uncontroverted, the moving party is entitled to prevail as a matter of law. Note that this differs from a Demurrer, where the facts as pled (not proven) by the Plaintiff must be taken as true.

  1. In an MSJ by contrast both sides must present actual admissible evidence in their pleadings.
  2. Unlike a Demurrer, in an MSJ the Plaintiff cannot win merely by alleging facts.
  3. Essentially an MSJ is an attempt by one side to try the case by written pleadings, declaration, and documents rather than by trial.

Even a slight dispute over the facts can be enough to defeat Summary Judgment, A simple hypothetical will illustrate this point. In an auto collision case where the operative dispute is whether a traffic light was yellow or red when the Ford entered the intersection, there might be five (5) eyewitnesses.

  • If four of them say that the light was yellow and one of them testifies that the light was red, you have a controverted fact.
  • Never mind that at trial common sense might suggest that four witnesses might likely defeat one competing witness.
  • The one witness will defeat Summary Judgment because the subject fact, i.e.

the color of the light, is controverted by admissible evidence. Essentially the law is saying that at the Summary Judgment stage of the case the Judge cannot weigh four witnesses versus only one. Perhaps the Judge or Jury at trial will find the one witness to be more credible than the other four.

  1. Unlikely but possible.
  2. Unfortunately, the causes for the difficulty in dismissing lawsuits via Demurrer, Motion for Summary Judgment, or other pretrial motions does not end with the simple way the law is written.
  3. Buffington Law Firm’s trust, business, and real estate litigation attorneys have noticed a distinct trend by trial judges against granting these motions in recent years.

Fifteen or 20 years ago, in our opinion, California trial judges were distinctly more inclined to grant good Demurrers or Motions for Summary Judgment than is the case today. At bench-bar seminars, comments made by both judges and attorneys seem to bear out this notion.

There may be many reasons for this. First and foremost, it is notorious that the California judiciary is presently gravely underfunded and Judge caseloads have risen steadily in recent years. This of necessity makes it harder for courts to devote as much time to sometimes complex Demurrer and Summary Judgment motions, and few motions are more complex than Motions for Summary Judgement.

This may be inducing a statistical lean towards denying these kinds of motions, based upon the notion that “it will get more thoroughly looked at in trial anyway.” This may be understandable, but this is of little solace to defendants who believe (sometimes in our opinion correctly) that their Summary Judgment motion had merit, they paid their lawyers good money to draft it, and now they must face (and pay for) a full-blown trial often because of a relatively flimsy “controverted fact” brought up by the other side.

Demurrers have an additional wrinkle. Even when granted, the Plaintiff usually gets leave to amend and try again, usually for at least two tries. In practice Demurrers rarely succeed in throwing out all but the most flimsy lawsuits. The result of all of this is that many lawyers are increasingly disinclined to bring motions such as Demurrers and MSJs in many situations, even if there is objectively a credible chance at success.

These motions cost money to draft. A Summary Judgment motion in particular may cost many thousands of dollars for the lawyers to draft. This is money that might be better spent for trial preparation and trial. (Or on things other than lawsuits!) These are judgment calls that lawyers and their clients must make.

  1. The present, perceived disinclination by judges to grant these pretrial motions has tilted the decision-making process to some degree against these types of motions as opposed to earlier years, at least for many attorneys.
  2. Lawsuits are often not cheap.
  3. For Defendants, a lawsuit invariably represents an unwanted financial burden.

Trying to bring these motions can be a high-cost tactic with a relatively low probability of success. This is why many attorneys believe that for many cases the best “bang for the buck” for the client is to keep pretrial procedures to a minimum and spend all legal dollars in trial preparation (or in attempts at settlement–another way to end a case before trial.) Procedurally, the deck is stacked against the Defense when it comes to forcing the dismissal of meritless lawsuits.

A Plaintiff can survive Demurrer merely by alleging facts, even improbable “facts” of dubious veracity. Motions for Summary Judgment are easy to defeat and hard for the moving party to win as a matter of law because defeating the motion usually requires only a slight controversy concerning key facts.

These Motions, particularly Summary Judgment motions, are expensive to bring. So the question becomes: what can best be done to force the earliest feasible and successful conclusion to a meritless, frivolous, or extremely weak lawsuit? At Buffington Law Firm, our civil trial dispute attorneys have a strategy.

  • Often the best way to conclude a lawsuit, especially a weak or meritless one, is to diligently and conspicuously prepare for trial,
  • This is often the most cost-effective litigation strategy that offers the most “bang for the legal buck.” Our trust, business, and real estate litigation attorneys believe that most times, when the other side and its attorneys see that we are plain and simple preparing carefully for trial, this leads to an earlier conclusion of the case – often by settlement at a relatively early stage.

When the other side sees that we are preparing for trial in a no-nonsense manner, this often forces a party with a weak or meritless lawsuit to “get real.” Even if the plaintiff him or her self is unrealistic about the lawsuit, this often motivates the plaintiff’s attorney to make the plaintiff see reality.

Lawyers do not like to lose lawsuits and often they will view a low-dollar settlement as a good way to escape from one. Further, legal costs are not confined to the defense — plaintiffs are usually paying their attorneys as well; not many trust, real estate, or business litigation cases are brought on a contingent fee basis.

Even if it is, when a lawyer being paid on a contingent fee basis for a weak or frivolous lawsuit sees that our side is prepared to take the case to trial, that lawyer is faced with the prospect of working for a year on a case and very likely not getting paid for the work.

Settlement becomes his or her only successful strategy. A successful defense approach to settlement of a weak or meritless lawsuit may involve a settlement that is far less than the cost of successfully defending it. While, for example, bringing a Summary Judgment motion is certain to cost money and uncertain of outcome, a successful low-dollar settlement may cost less than such a motion and offers certainty and finality of outcome.

Buffington Law Firm has successfully concluded many vexatious lawsuits by negotiating below-cost-of-defense settlements for our clients. Remember that actual trial always carries with it some uncertainty of outcome even if the Plaintiff’s case is a weak one.

Every experienced trial attorney knows this. Thus, preparing for trial is often the best approach to force an early conclusion of a plaintiff’s weak or frivolous lawsuit. The other benefit of this “prepare for trial” strategy is that if all else fails and we must go to trial, we are ready and all of the legal costs in the case have been focused upon trial preparation.

This inevitably lowers the overall cost of defense for our clients. If you are faced with a trust, real estate, or business dispute, our trial attorneys have decades of experience in successfully handling such disputes. We invite you to contact Buffington Law Firm, PC, for a,

What is an example of a demurrer?

In a criminal case, a demurrer is a defendant’s assertion that the document laying out the charges—the complaint, information, or indictment —is legally insufficient. In demurring, the defendant claims that the charging document is so flawed that it can’t be used to convict him or her.

  • A demurrer involves a consideration of the document itself—not any of the evidence.
  • Some demurrers go to the heart of the charging document by alleging that it fails to state an offense, while others challenge its form—for example, by arguing that it’s too vague or uncertain.
  • Demurrers usually occur at or before the time for entering a plea,

If the court grants a demurrer, the prosecution can typically re-file charges. Similarly, some errors are so minor that the prosecution or judge can simply edit them and otherwise leave the charging document intact. But sometimes the demurrer reveals an underlying problem with the prosecution’s case that can’t be fixed.

  1. Example: The prosecution charges Walter with a statute that penalizes violation of the terms of a family violence order.
  2. But the complaint doesn’t indicate the terms that he allegedly violated or the manner in which he violated them.
  3. It doesn’t specify, for example, that he came to the family home when prohibited from being there, or that he came within a prohibited distance of his estranged wife.

The court grants Walt’s demurrer. ( Newsome v. State, 296 Ga. App.490 (2009).) Example: Gus files a demurrer to a complaint that accuses him of threatening Walter in violation of a statute that prohibits ” criminal threats,” Gus claims that the statute is unconstitutional because it infringes free speech, and that the complaint is therefore void.

The judge rejects this argument on the grounds that previous courts have rejected similar claims; they’ve held that the Constitution doesn’t protect all kinds of “speech.” Example: In a theft prosecution, Saul argues that the complaint is faulty because it doesn’t provide the name of the owner of the allegedly stolen property.

But Saul didn’t raise this technical argument until after pleading to the indictment, so the court deems it “waived.” ( Lanier v. State, 269 Ga. App.284 (2004).)

Is demurrer same as motion to dismiss?

A demurrer is a challenge to a particular claim that is made in court. A motion to dismiss is when a request is made to drop a court case. A demurrer or a motion to dismiss can be made on various grounds. For example, Bill Cosby’s lawyer filed for a demurrer based on the statute of limitations.

When should the demurrer be filed?

THIRD DIVISION July 10, 2019 G.R. No.237553 BDO UNIBANK, INC., Petitioner vs. ANTONIO CHOA, Respondent D E C I S I O N LEONEN, J.: When a demurrer is granted in a criminal case, the private complainant can file a Rule 65 petition on the civil aspect of the case, as long as he or she can show that the trial court committed grave abuse of discretion in granting the demurrer.

  1. This Court resolves a Petition for Review on Certiorari 1 under Rule 45 of the 1997 Rules of Civil Procedure, assailing the October 24, 2017 Decision 2 and February 13, 2018 Resolution 3 of the Court of Appeals in CA-G.R.
  2. SP No.140059.4 The Court of Appeals affirmed the November 26, 2014 5 and February 12, 2015 6 Orders of the Regional Trial Court, which granted Antonio Choa (Choa)’s Demurrer to Evidence.

On February 28, 2008, an Information 7 was filed before the Regional Trial Court of Pasig City against Choa, then president and general manager of Camden Industries, Inc. (Camden). He was charged with violating Presidential Decree No.115, or the Trust Receipts Law, to the prejudice of BDO Unibank, Inc.

(BDO), the private complainant. The Information read: That, on or about and during the period beginning March 12, 1999 until May 20, 1999, in the then Municipality of San Juan, now City of San Juan, a place within the jurisdiction of this Honorable Court, the above named accused, being then the President and General Manager of Camden Industries, Inc., execute several Trust Receipt Agreements with Nos.0006, 0007, 0008, 0009, 0024, 0025, 0046 and 0047 in favor of Equitable PCI Bank (now Banco De Oro-EPCI, Inc.), herein represented by its Senior Manager Danilo M.

De Dios, in consideration of the receipt by the said accused of, for which there is now due the sum of Php 7,875,904.96 under the terms of which the accused agreed to sell the same with express obligation to remit to the complainant bank proceeds of the sale and/or turn over the same if not sold or disposed of in accordance with the said Trust Receipt Agreements on demand, but the accused once in possession of the said good, far from complying with his obligation and with unfaithfulness and abuse of confidence, did then and there willfully, unlawfully and feloniously, misappropriate, misapply and convert to his own personal use and benefit the said goods and/or the proceeds of the sale thereof, and despite repeated demands, failed and refused to account for and/or remit the proceeds of the sale thereof, to the damage and prejudice of the said complainant bank in the aforementioned amount of Php7,875,904.96.

  • CONTRARY TO LAW.8 Trial ensued.
  • The prosecution presented Gerard K.
  • Santiago (Santiago) and Froilan Carada (Carada) as its witnesses.9 The witnesses testified, among others, that per Civil Case No.70098, entitled ” CAMDEN Industries, Inc.v.
  • Equitable PCI Bank ” (Pasig civil case), which had been elevated to the Court of Appeals, BDO supposedly owed Camden the judgment award of ₱90 million.10 They testified: a.

The subject trust receipts are for the account of CAMDEN Industries b. The complainant bank did not sue CAMDEN for the liability. The only one they sued was CAMDEN’s President, the accused; c. CAMDEN sued the bank and was awarded P90M plus. The bank was ordered to pay CAMDEN the same amount.

The case is now on appeal to the Court of Appeals; d. Upon the other hand, the money claim of the bank against CAMDEN and/or for the accused is P20M plus; e. On clarificatory question by the court, the prosecution witness Gerard Santiago dmitted that currently the bank is a judgment debtor of CAMDEN in the amount of P90M plus while the bank’s claim against CAMDEN/accused is P20M plus 11 On August 20, 2014, the prosecution filed its Formal Offer of Documentary Evidence, 12 which the trial court admitted in its September 12, 2014 Order.13 In the same Order, the trial court gave Choa 10 days to comment on the prosecution’s evidence.14 On September 25, 2014, Choa filed his Comment.15 Later, on October 13, 2014, Choa filed a Motion for Leave (To file Demurrer to Evidence), 16 attached to which was his Demurrer to Evidence.17 In both pleadings, Choa argued: It would thus appear that CAMDEN, represented by the accused, and the bank, assuming arguendo without admitting the bank’s theory of the case, are mutually creditors and debtors of each other ( Art.1278, Civil Code ).

Consequently, their obligations are extinguished proportionately by operation of law. Since the P20M plus being claimed by the bank is more than offset by the P90M plus judgment against the bank, there is no basis for the claim of violation of the Trust Receipts Law.

At the very least, it would be impossible under such premises to build the case beyond reasonable doubt.18 (Emphasis in the original) In its October 20, 2014 Order, 19 the trial court directed the prosecution to comment on Choa’s pleading, and Choa’s counsel to reply on the comment if needed.20 On October 30, 2014, the prosecution filed its Opposition.21 Arguing that the Motion for Leave should be expunged from the records, it claimed that the pleading was pro-forma for being filed beyond the five (5)-day reglementary period under Rule 119, Section 23 of the Rules of Court.22 Even if the Motion was timely filed, the prosecution asserted that it should still be denied for lack of basis, maintaining that Choa’s civil liabilities could not have been offset by the judgment award granted to Camden in the Pasig civil case.

It points out that since Choa’s civil liabilities stemmed from his criminal violations of the Trust Receipts Law, 23 they could not be the subject of compensation.24 The prosecution added that the decision of the trial court, which had awarded Camden ₱90 million, was reversed and set aside by the Court of Appeals.25 On November 26, 2014, the trial court issued an Order 26 granting Choa’s Demurrer to Evidence.

Based on the records and the witnesses’ testimonies, it found that the prosecution failed to establish Choa’s guilt.27 The trial court found that: (1) the amounts BDO and Camden owed each otherBDO’s ₱90 million judgment debt to Camden, and Camden’s ₱20 million judgment debt to BDOmay be legally compensated; (2) BDO failed to prove that Choa was liable for ₱7,875,904.96, and that this amount formed part of the ₱20 million trust receipt; and (3) BDO failed to prove Choa’s criminal intent in not paying or turning over the goods.28 From these findings, the trial court declared that “the case is subject to compensatory action, which is civil in nature.” 29 The dispositive portion of the Regional Trial Court Order read: WHEREFORE, premises considered, accused Antonio Choa’s Demurrer to Evidence is hereby GRANTED,

SO ORDERED.30 (Emphasis in the original) The prosecution filed a Motion for Reconsideration, 31 which the trial court denied in its February 12, 2015 Order.32 Thus, BDO filed before the Court of Appeals a Petition for Certiorari, 33 assailing the trial court’s November 26, 2014 and February 12, 2015 Orders.

It argued that the trial court judge committed grave abuse of discretion in: 1. granting Choa’s Demurrer to Evidence despite being filed out of time; 2. granting the Demurrer to Evidence without first resolving the Motion for Leave and giving BDO due process; 3. ruling that Choa’s civil liabilities may be legally compensated with the judgment award in the Pasig civil case despite it being irrelevant to this case, and despite the award having been reversed by the Court of Appeals; 4.

granting the Demurrer to Evidence despite the prosecution having established a prima facie case for Choa’s violation of the Trust Receipts Law; and 5. ruling that the prosecution failed to present enough proof of Camden’s outstanding obligations to BDO despite evidence to the contrary.34 Affirming the trial court’s Orders, the Court of Appeals issued its October 24, 2017 Decision 35 denying BDO’s Petition.

It found that Choa filed his Motion for Leave within the prescriptive period since the prosecution could not “yet be deemed to have rested its case.” 36 It explained that the trial court only “physically ‘admitted'” 37 in its September 12, 2014 Order the prosecution’s Formal Offer of Documentary Evidence, but had yet to rule on its admissibility.

This was shown, the Court of Appeals explained, when Choa was also directed to submit his Comment.38 The Court of Appeals added that BDO was not denied due process. It pointed out that the bank’s filing of its Opposition and subsequent Motion for Reconsideration showed that it had been given an opportunity to be heard.39 The Court of Appeals noted that when the opportunity to be heard is accorded, “there is no denial of procedural due process.” 40 Finally, the Court of Appeals held that BDO failed to show how the trial court had committed grave abuse of discretion in issuing the September 12, 2014 Order.41 Even if the trial court erred in granting Choa’s Demurrer to Evidence, the Court of Appeals stated that this error was not “capricious and whimsical as to constitute grave abuse of discretion.” 42 The dispositive portion of the Court of Appeals Decision read: WHEREFORE, the instant petition is hereby DENIED,

ACCORDINGLY, the assailed Orders dated November 26, 2014 and February 12, 2015 of the Regional Trial Court of Pasig City (assigned in San Juan City), Branch 264, in Criminal Case No.137326, are hereby AFFIRMED, SO ORDERED,43 (Emphasis in the original) BDO moved for reconsideration, 44 but the Court of Appeals denied the Motion in its February 13, 2018 Resolution.45 Hence, BDO filed this Petition for Review on Certiorari, 46 assailing the October 24, 2017 Decision and February 13, 2018 Resolution of the Court of Appeals.47 On November 5, 2018, Choa filed his Comment.48 In turn, BDO filed its Reply 49 on February 1, 2019.

Petitioner insists that the Motion for Leave was not timely filed. It avers that under Rule 119, Section 23 of the Rules of Court, respondent should have filed his Motion for Leave within five (5) days from September 12, 2014, when the prosecution supposedly rested its case after its documentary evidence had been admitted by the trial court judge.50 It claims that if, according to the Court of Appeals, the prosecution did not rest its case at the time of the filing of the Motion for Leave, then the trial court’s judgment granting the Demurrer to Evidence was premature, and therefore, void.51 Moreover, petitioner contends that the trial court should have first ruled on respondent’s Motion for Leave, 52 as this would have helped “in determining whether he is merely stalling the proceedings.” 53 Nonetheless, even if the trial court judge was allowed to resolve respondent’s Demurrer to Evidence without first ruling on the Motion, petitioner claims that the prosecution should have been given 10 days from notice of the ruling on the Motion so it could file its Opposition to the Demurrer to Evidence.54 What happened, petitioner claims, was that the prosecution was deprived of an opportunity to be heard on both pleadings.55 Petitioner maintains that it was deprived of an opportunity to present extensive evidence on the overpayment in the Pasig civil case as it believed that the trial court would not use the Pasig civil case judgment in resolving the Demurrer to Evidence.

  1. It points out that the trial court has consistently stated in three (3) OrdersJuly 21, 2008, April 14, 2009, and November 8, 2010that the Pasig civil case was irrelevant to this case.
  2. It says it did not know that the trial court would use the Pasig civil case judgment in ruling that the judgment debts may be offset.56 Finally, petitioner avers that the Court of Appeals should have decided on the merits of the Demurrer to Evidence after the trial court judge had committed grave abuse of discretion in: 1.

allowing respondent to comment on the Formal Offer of Documentary Evidence despite it having already been admitted; 2. granting the Motion for Leave despite being filed belatedly; 3. denying petitioner due process by granting the Motion and Demurrer to Evidence without giving the prosecution a chance to refute the pleadings; 4.

rulingcontrary to the Civil Codethat there could be legal compensation between the judgment debt in Camden’s favor and respondent’s civil liability arising from a criminal case; 5. ignoring the Court of Appeals Decision that reversed the trial court Decision awarding the judgment debt in Camden’s favor; 6.

ruling that respondent’s obligation to petitioner was a mere loan, despite his liability for violating the Trust Receipts Law; 7. ignoring that respondent’s violation of the Trust Receipts Law was malum prohibitum ; and 8. ruling that the prosecution failed to present proof of Camden’s outstanding obligations to petitioner.57 In his Comment, 58 respondent counters that this Petition should have been “denied outright for lack of authority.” 59 It maintains that petitioner was also appealing the criminal aspect of the case, which was exclusively within the Office of the Solicitor General’s authority.

Without the conformity or authority of the Office of the Solicitor General, petitioner had no standing to appeal the criminal aspect of the case.60 Respondent also insists that his Motion for Leave was not belatedly filed. Contrary to petitioner’s claim, the period of his Motion’s filing did not start on September 12, 2014, when the trial court admitted the prosecution’s exhibits.

Respondent asserts that since the trial court directed him to comment on the evidence in the same Order, the trial court did not yet rule on the evidence’s admissibility. If the trial court indeed made a ruling on September 12, 2014, respondent asserts that petitioner should have moved for reconsideration or clarification of the Order, or it could have raised the alleged prematurity of the Motion for Leave earlier in its Oppositionbut it did not do either.61 Respondent argues that petitioner was not deprived of its opportunity to be heard on both the Motion for Leave and the Demurrer to Evidence.

He emphasizes that petitioner was duly represented at the hearing on the Motion for Leave, and that it filed its Opposition to both pleadings. He further argues that petitioner should have moved for reconsideration or clarification of the trial court’s November 4, 2014 Order if it believed that the Motion, not the Demurrer, was the only subject for resolution.62 Respondent avers that petitioner’s other arguments involved an appreciation of evidence, which is not proper in a petition for certiorari filed before the Court of Appeals.63 He reiterated that a Rule 65 petition “cannot be granted to correct mere errors in appreciation of facts or interpretation of law.” 64 Maintaining that his guilt of the accusation in the Information has not been proven,” 65 respondent argues that the prosecution failed to prove that he “was directly and personally responsible for the alleged violation of the Trust Receipts Law” 66 He emphasizes that the prosecution witnesses had no personal knowledge of the trust receipt transactions, and that their testimonies were merely based on available records.67 Moreover, respondent claims that the elements of the offense are absent in his case: There is no proof that Respondent received the goods subject of the trust receipts (first element).

There is no proof that he personally misappropriated such goods or the proceeds of their sale (second element). There is no proof that Respondent performed such act of misappropriation or conversion with abuse of confidence (third element). There is even no proof of demand upon him (fourth element).68 Lastly, respondent points out that petitioner did not present any evidence on the alleged reversal of the Pasig civil case.

He submits that petitioner did not submit a certified copy of the Court of Appeals Decision despite purportedly obtaining it before filing the Formal Offer of Documentary Evidence.69 In its Reply, 70 petitioner maintains that it has personality in filing this case, citing as its bases Rural Bank of Mabitac, Laguna, Inc.v.

Canicon 71 and David v. Marquez.72 It refutes respondent’s claim that its Petition should be dismissed for being filed without the Office of the Solicitor General’s authority.73 Petitioner insists that the trial court judge committed grave abuse of discretion in issuing the assailed Orders.

  1. As such, respondent was not validly acquitted and, consequently, there is no double jeopardy.
  2. Petitioner reiterates that it was able to sufficiently show the trial court judge’s arbitrariness and abuse of authority in the way he handled the case.74 Moreover, petitioner again submits that respondent’s Motion for Leave was belatedly filed.75 Petitioner reiterates that it was deprived of due process.

It insists that the trial court failed to give it an opportunity to present evidence in relation to the Pasig civil case, and on both the Motion for Leave and Demurrer to Evidence.76 On the Pasig civil case, petitioner asserts that it was not possible then to include the Court of Appeals Decision in its Formal Offer of Documentary Evidence since it received the copy after it had concluded its presentation of evidence.

  • Nonetheless, it claims that it manifested the Decision and attached its copy to its Opposition before the trial court.
  • Thus, it was able to inform the trial court judge of the Decision.77 Petitioner argues that even if it did not include the Court of Appeals Decision in the case records, the Pasig civil case will still be irrelevant to the criminal case since “the trial court Judge already ruled that the Pasig Civil Case will not determine the guilt or innocence of respondent” 78 The issues for this Court’s resolution are: First, whether or not petitioner BDO Unibank, Inc.

has the legal personality to file a Petition for Certiorari before the Court of Appeals; and Second, whether or not the Court of Appeals erred in ruling that the trial court judge did not commit grave abuse of discretion when he issued the Order granting respondent Antonio Choa’s Demurrer to Evidence.

I The State has the “inherent prerogative in prosecuting criminal cases and in seeing to it that justice is served.” 79 Subsumed under this right is the authority to appeal an accused’s acquittal. In Bautista v. Cuneta-Pangilinan, 80 this Court elaborated: The authority to represent the State in appeals of criminal cases before the Supreme Court and the CA is solely vested in the Office of the Solicitor General (OSG).

Section 35 (1), Chapter 12, Title III, Book IV of the 1987 Administrative Code explicitly provides that the OSG shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers.

It shall have specific powers and functions to represent the Government and its officers in the Supreme Court and the CA, and all other courts or tribunals in all civil actions and special proceedings in which the Government or any officer thereof in his official capacity is a party. The OSG is the law office of the Government.

To be sure, in criminal cases, the acquittal of the accused or the dismissal of the case against him can only be appealed by the Solicitor General, acting on behalf of the State. The private complainant or the offended party may question such acquittal or dismissal only insofar as the civil liability of the accused is concerned.

In a catena of cases, this view has been time and again espoused and maintained by the Court. In Rodriguez v. Gadiane, it was categorically stated that if the criminal case is dismissed by the trial court or if there is an acquittal, the appeal on the criminal aspect of the case must be instituted by the Solicitor General in behalf of the State.

The capability of the private complainant to question such dismissal or acquittal is limited only to the civil aspect of the case, Worthy of note is the case of People v. Santiago, wherein the Court had the occasion to bring this issue to rest. The Court elucidated: It is well-settled that in criminal cases where the offended party is the State, the interest of the private complainant or the private offended party is limited to the civil liability.

  • Thus, in the prosecution of the offense, the complainant’s role is limited to that of a witness for the prosecution.
  • If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may be undertaken only by the State through the Solicitor General.

Only the Solicitor General may represent the People of the Philippines on appeal. The private offended party or complainant may not take such appeal. However, the said offended party or complainant may appeal the civil aspect despite the acquittal of the accused.

In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is alleged that the trial court committed a grave abuse of discretion amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved.

In such case, the aggrieved parties are the State and the private offended party or complainant. The complainant has an interest in the civil aspect of the case so he may file such special civil action questioning the decision or action of the respondent court on jurisdictional grounds.

  • In so doing, complainant should not bring the action in the name of the People of the Philippines.
  • The action may be prosecuted in name of said complainant.
  • Thus, the Court has definitively ruled that in a criminal case in which the offended party is the State, the interest of the private complainant or the private offended party is limited to the civil liability arising therefrom.

If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal of the criminal aspect may be undertaken, whenever legally feasible, only by the State through the solicitor general. As a rule, only the Solicitor General may represent the People of the Philippines on appeal.

  1. The private offended party or complainant may not undertake such appeal.81 (Emphasis supplied, citations omitted) Here, although petitioner discussed respondent’s criminal liability in its Petition for Certiorari, the totality of its arguments concerns the civil aspect of the case.
  2. It reinforced its position in its concluding paragraph: All told, public respondent Judge clearly committed grave abuse of discretion amounting to lack and/or excess of jurisdiction in holding that the prosecution was not able to prove private respondent Choa’s liability in the total amount of P7,875,904.96 as stated in the Information as well as CAMDEN’s total outstanding obligation to petitioner BDO as of 31 March 2011 in the amount of P23,806,788.11.82 Thus, petitioner has the legal personality to file a special civil action questioning the Regional Trial Court Orders insofar as the civil aspect of the case is concerned.

II This Court will first resolve the procedural issue of whether the trial court erred in not dismissing outright respondent’s Motion for Leave and Demurrer to Evidence for being filed out of time. Demurrer to evidence in criminal cases is governed by Rule 119, Section 23 of the Revised Rules of Criminal Procedure: RULE 119 Trial SECTION 23.

  • Demurrer to Evidence.
  • After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.

If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.

  • The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case.
  • The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt.

If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period often (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt. The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.

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In Valencia v. Sandiganbayan, 83 this Court clarified: A demurrer to evidence tests the sufficiency or insufficiency of the prosecution’s evidence. As such, a demurrer to evidence or a motion for leave to file the same must be filed after the prosecution rests its case. But before an evidence may be admitted, the rules require that the same be formally offered, otherwise, it cannot be considered by the court.

A prior formal offer of evidence concludes the case for the prosecution and determines the timeliness of the filing of a demurrer to evidence.84 A review of the case records reveals that when the prosecution filed its Formal Offer of Documentary Evidence 85 on August 20, 2014, it included a reservation in its Prayer, which states: PRAYER WHEREFORE, it is respectfully prayed that plaintiff People of the Philippines’ Exhibits “A” to “P-I”, inclusive of their submarkings, be admitted in evidence for the purposes for ( sic ) which they have been offered.

  1. With the admission of the foregoing exhibits and the testimonies of Messrs.
  2. Gerard Santiago and Froilan Carada, for the purposes for (sic) which they are offered, plaintiff People of the Philippines hereby rests its case.
  3. In the event that the Honorable Court will deny the admission of any of the foregoing exhibits offered, it is respectfully prayed that the Honorable Court grant plaintiff People of the Philippines an opportunity to present additional evidence.

Other reliefs just and equitable are likewise prayed for.86 (Emphasis supplied) The prayer itself indicates that the prosecution would rest its case depending on whether the trial court admitted its evidence. If the trial court did not admit its evidence, the prosecution would present additional evidence; otherwise, it would rest its case.

Due to this reservation, the five (5)-day period for the filing of a Motion for Leave had not yet started when petitioner filed its Formal Offer of Documentary Evidence. The prosecution is deemed to have rested its case on September 12, 2014, when the trial court admitted its documentary evidence. In Cabador v.

People, 87 this Court held that “only after could the prosecution be deemed to have rested its case.” 88 However, the counting of the five (5)-day period did not commence on August 20, 2014, when the prosecution filed its Formal Offer of Documentary Evidence; or on September 12, 2014, when the trial court admitted the evidence.

Instead, it started upon respondent’s receipt of the September 12, 2014 Order, for only then was he notified that the prosecution had rested its case. Nonetheless, respondent filed his Motion for Leave and Demurrer to Evidence on October 13, 2014. To recall, the September 12, 2014 Order had also directed respondent to submit his comment/opposition, which he then submitted on September 25, 2014.

Even if there is no record of when respondent received a copy of the Order, it can be surmised that he received it before September 25, 2014. It follows that the Motion for Leave and the Demurrer to Evidence were filed beyond the five (5)-day period under Rule 119, Section 23 of the Rules of Court.

  1. The trial court, then, should have denied these pleadings outright.
  2. III Nevertheless, even if the Motion for Leave and the Demurrer to Evidence were filed on time, the trial court judge still committed grave abuse of discretion in granting the Demurrer to Evidence.
  3. Presidential Decree No.115, or the Trust Receipts Law, defines a trust receipt transaction: SECTION 4.

What constitutes a trust receipt transaction. A trust receipt transaction, within the meaning of this Decree, is any transaction by and between a person referred to in this Decree as the entruster, and another person referred to in this Decree as the entrustee, whereby the entruster, who owns or holds absolute title or security interests over certain specified goods, documents or instruments, releases the same to the possession of the entrustee upon the latter’s execution and delivery to the entruster of a signed document called a “trust receipt” wherein the entrustee binds himself to hold the designated goods, documents or instruments in trust for the entruster and to sell or otherwise dispose of the goods, documents or instruments with the obligation to turn over to the entruster the proceeds thereof to the extent of the amount owing to the entruster or as appears in the trust receipt or the goods, documents or instruments themselves if they are unsold or not otherwise disposed of, in accordance with the terms and conditions specified in the trust receipt, or for other purposes substantially equivalent to any of the following: 1.

In the case of goods or documents, (a) to sell the goods or procure their sale; or (b) to manufacture or process the goods with the purpose of ultimate sale: Provided, That, in the case of goods delivered under trust receipt for the purpose of manufacturing or processing before its ultimate sale, the entruster shall retain its title over the goods whether in its original or processed form until the entrustee has complied fully with his obligation under the trust receipt; or (c) to load, unload, ship or transship or otherwise deal with them in a manner preliminary or necessary to their sale; or 2.

In the case of instruments, (a) to sell or procure their sale or exchange; or (b) to deliver them to a principal; or (c) to effect the consummation of some transactions involving delivery to a depository or register; or (d) to effect their presentation, collection or renewal.

The sale of goods, documents or instruments by a person in the business of selling goods, documents or instruments for profit who, at the outset of the transaction, has, as against the buyer, general property rights in such goods, documents or instruments, or who sells the same to the buyer on credit, retaining title or other interest as security for the payment of the purchase price, does not constitute a trust receipt transaction and is outside the purview and coverage of this Decree.

Simply put, “a trust receipt transaction imposes upon the entrustee the obligation to deliver to the entruster the price of the sale, or if the merchandise is not sold, to return the same to the entruster.” 89 Gonzalez v. Hongkong & Shanghai Banking Corporation 90 explained: There are thus two obligations in a trust receipt transaction: the first, refers to money received under the obligation involving the duty to turn it over ( entregarla ) to the owner of the merchandise sold, while the second refers to merchandise received under the obligation to “return” it ( devolvera ) to the owner.

A violation of any of these undertakings constitutes estafa defined under Art.315 (1) (b) of the Revised Penal Code, as provided by Sec.13 of Presidential Decree 115 91 (Citations omitted) In granting respondent’s Demurrer to Evidence, the trial court consequently acquitted him of violation of the Trust Receipts Law.

The Decision was based on grounds that: (1) petitioner owed Camden, which was represented by respondent, ₱90 million, while Camden owed petitioner ₱20 million, and both amounts can be legally compensated; (2) petitioner failed to provide evidence that respondent was liable for ₱7,875,904.96 as alleged in the Information, or that this amount formed part of the ₱20 million trust receipt; and (3) petitioner failed to provide evidence of respondent’s criminal intent in not paying or turning over the goods.

  • On the first ground, the trial court held: In the instant case, what is evidently proved is that the complainant and CAMDEN, represented by the accused have earlier litigated on the issue of trust receipt.
  • Accordingly, complainant BDO was decided on that case a judgment debtor in favor of the (sic) CAMDEN.

It was testified that BDO is obligated to the accused Antonio Choa by as much as P90M more or less. On the other hand, CAMDEN, represented by the accused Antonio Choa, is claimed to have failed to pay and/or turn over the goods amounting to P20M. What is clear from the record is that the accused is obligated to pay the private complainant BDO for the purchase of the goods.

  • Under this ( sic ) circumstances, the transaction is a mere loan extended to the accused who in turn is to pay the loan by way of remittance of the proceeds of the sale.
  • If the goods are unsold or surrender (sic) the collateral no criminal liability arises.
  • Hence, accused should not be held liable for violation of Presidential Decree No.115 roviding for the Regulation of the Trust Receipts Transactions.

The mass of trust receipts subject of this case in the amount of P20M interspersed with the claim of P90M accused have against the complainant. Hence, the case is subject to compensatory action, which is civil in nature.92 However, the judgment in the Pasig civil case is irrelevant here.

Again, the issue here is whether Camden violated the Trust Receipt Agreements when it failed to deliver the proceeds of the sale of the goods to petitioner, or to return the goods should the merchandise remain unsold. Moreover, the Pasig civil case, which held petitioner as a judgment debtor of Camden, has yet to attain finality.93 As such, it cannot be the basis of a judgment.

On the second ground, the trial court held: However, a review of the information filed by 4th Assistant City Prosecutor, Ma. Dinna Paulino, reveals that the amount at issue is P7,875,904.96. There is nothing on record that the information of the prosecution even mentioned the specific amount of P7,875,904.96.

All that testified is the P20M liability of the accused without specific proof of obligation how the accused was able to accumulate the P20M. To the mind of the court, there is not even a probable cause sufficient to indict the accused for his minimal liability of P7,875,904.96. So far, the prosecution was able to advance an imaginary liability of P20M.

There is even no proof posited that the P7,875,904.96 mentioned in the information, forms part of that P20M trust receipt.94 Contrary to the trial court’s ruling, the prosecution was able to show how it computed the amount of ₱7,875,904.96. In its Formal Offer of Documentary Evidence, the prosecution offered the following Trust Receipt Agreements and their corresponding amounts, which respondent received as Camden’s representative:

Trust Receipt Agreement No.006, dated March 12, 1999 ₱711,385.00
Trust Receipt Agreement No.007, dated March 12, 1999 ₱662,660.00
Trust Receipt Agreement No.008, dated May 7, 1999 ₱883,035.00
Trust Receipt Agreement No.009, dated May 17, 1999 ₱1,532,113.20
Trust Receipt Agreement No.024, dated May 17, 1999 ₱1,037,458.40
Trust Receipt Agreement No.025, dated May 17, 1999 ₱1,148,201.76
Trust Receipt Agreement No.046, dated May 20, 1999 ₱644,810.00
Trust Receipt Agreement No.047, dated May 20, 1999 ₱1,256,241.60 95

These amounts total ₱7,875,904.96. The trial court, then, cannot rule that the prosecution was not able to provide evidence. In addition, whether this amount formed part of the alleged ₱20 million trust receipt obligation of respondent is irrelevant. That is not the issue in this case, which deals with the violation of the Trust Receipts Law.

On the third ground, the trial court held: Finally, records show that the prosecution failed to elicit strong evidence that the accused has criminal intent not to pay or turn over the goods to the private complainant.96 Criminal intent is irrelevant in prosecuting the violation of the Trust Receipts Law.

In Gonzalez : That petitioner Gonzalez neither had the intent to defraud respondent HSBC nor personally misused/misappropriated the goods subject of the trust receipts is of no moment. The offense punished under Presidential Decree No.115 is in the nature of malum prohibitum,

A mere failure to deliver the proceeds of the sale or the goods if not sold, constitutes a criminal offense that causes prejudice not only to another, but more to the public interest. This is a matter of public policy as declared by the legislative authority. Moreover, this Court already held previously that failure of the entrustee to turn over the proceeds of the sale of the goods, covered by the trust receipt, to the entruster or to return said goods if they were not disposed of in accordance with the terms of the trust receipt shall be punishable as estafa under Art.315(1)(b) of the Revised Penal Code without need of proving intent to defraud,97 (Emphasis supplied, citations omitted) Thus, in granting the Demurrer to Evidence, the trial court judge committed grave abuse of discretion.

Its Orders, therefore, should be reversed. IV As a consequence, this Court will now resolve the merits of the case based on petitioner’s evidence. This is in line with the ruling in Siayngco v. Costibolo : 98 The rationale behind the rule and doctrine is simple and logical.

The defendant is permitted, without waiving his right to offer evidence in the event that his motion is not granted, to move for a dismissal (i.e. demur to the plaintiff’s evidence) on the ground that upon the facts as thus established and the applicable law, the plaintiff has shown no right to relief.

If the trial court denies the dismissal motion, i.e., finds that plaintiff’s evidence is sufficient for an award of judgment in the absence of contrary evidence, the case still remains before the trial court which should then proceed to hear and receive the defendant’s evidence so that all the facts and evidence of the contending parties may be properly placed before it for adjudication as well as before the appellate courts, in case of appeal.

  • Nothing is lost.
  • This doctrine is but in line with the established procedural precepts in the conduct of trials that the trial court liberally receive all preferred (sic) evidence at the trial to enable it to render its decision with all possibly relevant proofs in the record, thus assuring that the appellate courts upon appeal have all the material before them necessary to make a correct judgment, and avoiding the need of remanding the case for retrial or reception of improperly excluded evidence, with the possibility thereafter of still another appeal, with all the concomitant delays.

The rule, however, imposes the condition by the same token that if his demurrer is granted by the trial court, and the order of dismissal is reversed on appeal, the movant loses his right to present evidence in his behalf and he shall have been deemed to have elected to stand on the insufficiency of plaintiff’s case and evidence.

In such event, the appellate court which reverses the order of dismissal shall proceed to render judgment on the merits on the basis of plaintiff’s evidence.99 (Emphasis supplied) In the more recent case of Duque v. Spouses Yu : 100 In short, defendants who present a demurrer to the plaintiffs’ evidence retain the right to present their own evidence, if the trial court disagrees with them; if it agrees with them, but on appeal, the appellate court disagrees and reverses the dismissal order, the defendants lose the right to present their own evidence.

The appellate court shall, in addition, resolve the case and render judgment on the merits, inasmuch as a demurrer aims to discourage prolonged litigations.101 (Emphasis supplied, citation omitted) Based on the prosecution’s evidence, this Court cannot grant petitioner’s Complaint.

The prosecution’s evidence consists of copies of: (1) Trust Receipt Agreement Nos.006, 007, 008, 009, 024, 025, 04(5, and 047 between Equitable PCI Bank, Inc.petitioner’s predecessor-in-interestand Camden, with respondent signing as its representative; (2) a copy of the Demand Letter dated May 22, 2003 addressed to Camden and respondent; (3) Camden’s Statement of Account as of March 31, 2011; (4) the Certificate of Filing of the Articles and Plan of Merger dated May 25, 2007 between petitioner and Equitable PCI Bank, Inc.; (5) the Plan of Merger dated December 28, 2006 between petitioner and Equitable PCI Bank, Inc.; (6) Santiago’s Judicial Affidavit; and (7) Carada’s Judicial Affidavit.102 Although these pieces of evidence show that respondent signed the Trust Receipt Agreements, they do not show that he signed them in his personal capacity.

On the bottom right corner of the agreements are two (2) lines: one for the “NAME OF CORPORATION,” and the other for “AUTHORIZED SIGNATURE.” In all agreements, “Camden Inds.” was handwritten as the name of the corporation, while respondent’s signature appeared as the authorized signature.

  • Clearly, respondent affixed his signature only as Camden’s representative.
  • Moreover, there was no guaranty clause or a similar clause on the page that he signed that would have made him personally liable in case of default of the company.103 In Tupaz IV v.
  • Court of Appeals : 104 A corporation, being a juridical entity, may act only through its directors, officers, and employees.

Debts incurred by these individuals, acting as such corporate agents, are not theirs but the direct liability of the corporation they represent. As an exception, directors or officers are personally liable for the corporation’s debts only if they so contractually agree or stipulate.105 (Citations omitted) Without any evidence that respondent personally bound himself to the debts of the company he represented, this Court cannot hold him civilly liable under the Trust Receipt Agreements.

WHEREFORE, the Petition is DENIED, SO ORDERED. Peralta, (Chairperson), A. Reyes, Jr., Hernando, and Inting, JJ., concur. Footnotes 1 Rollo, pp.27-87.2 Id. at 9-21. The Decision was penned by Associate Justice Sesinando E. Villon, and concurred in by Associate Justices Manuel M. Barrios and Renato C. Francisco of the Ninth Division, Court of Appeals, Manila.3 Id.

at 22-23. The Resolution was penned by Associate Justice Sesinando E. Villon, and concurred in by Associate Justices Manuel M. Barrios and Renato C. Francisco of the Former Ninth Division, Court of Appeals, Manila.4 Id. at 76.5 Id. at 809-814. The Order, in Crim.

  • Case No.137326, was issued by Judge Leoncio M.
  • Janolo, Jr.
  • Of Branch 264, Regional Trial Court, Pasig City (assigned in San Juan City).6 Id.
  • At 906-909.
  • The Order, in Crim.
  • Case No.137326, was issued by Judge Leoncio M.
  • Janolo, Jr.
  • Of Branch 264, Regional Trial Court, Pasig City (assigned in San Juan City).7 Id.

at 414-415.8 Id. at 414 and 812.9 Id. at 90 and 809.10 Id. at 810. Gerard Santiago was then the account officer of BDO who handled Camden, Inc.’s account with respect to the Trust Receipt Agreements (id. at 602), while Froilan Carada was the head of the Letters of Credit Section of the Trade Processing Center of BDO (id.

At 674).11 Id. at 809-810.12 Id. at 683-696.13 Id. at 762.14 Id.15 Id. at 766-767.16 Id. at 769-770.17 Id. at 772-773.18 Id. at 769 and 772.19 Id. at 776.20 Id.21 Id. at 778-790.22 Id. at 779-783.23 Id. at 784-789.24 Id. at 785 citing CIVIL CODE, art.1288.25 Id. at 786-789.26 Id. at 809-814.27 Id. at 811.28 Id. at 811-813.29 Id.

at 814.30 Id.31 Id. at 816-842.32 Id. at 906-909.33 Id. at 911-971.34 Id. at 925-927.35 Id. at 89-101.36 Id. at 97.37 Id.38 Id.39 Id. at 100.40 Id.41 Id. at 98-100.42 Id. at 98.43 Id. at 101.44 Id. at 1195-1223.45 Id. at 103-104.46 Id. at 27-87.47 Id. at 76.48 Id.

  1. At 1317-1358.49 Id.
  2. At 1363-1382.50 Id.
  3. At 50-53.51 Id.
  4. At 53-56.52 Id.
  5. At 60-64.53 Id.
  6. At 63.54 Id.
  7. At 64.55 Id.56 Id.
  8. At 56-60.57 Id.
  9. At 67-75.58 Id.
  10. At 1317-1358.59 Id.
  11. At 1324.60 Id.
  12. At 1324-1327.61 Id.
  13. At 1328-1331.62 Id.
  14. At 1331-1335.
  15. The November 4, 2014 Order stated that the Demurrer to Evidence would be deemed submitted for resolution after respondent had filed his reply.63 Id.

at 1336-1339.64 Id. at 1337.65 Id. at 1339-1354.66 Id. at 1340.67 Id. at 1343.68 Id. at 1344.69 Id. at 1346-1348.70 Id. at 1363-1382.71 G.R. No.196015, June 27, 2018,,72 810 Phil.187 (2017),73 Rollo, pp.1365-1366.74 Id. at 1367-1368.75 Id. at 1369-1372.76 Id.

at 1372-1374.77 Id. at 1374-1379.78 Id. at 1378.79 People v. Subida, 526 Phil.115, 128 (2006),80 698 Phil.110 (2012),81 Id. at 122-124.82 Rollo, p.964.83 510 Phil.70 (2005),84 Id. at 80.85 Rollo, pp.683-696.86 Id. at 694.87 617 Phil.974 (2009),88 Id. at 982. See also Magleo v. Judge De Juan-Quinagoran, 746 Phil.552, 560 (2014),89 Gonzalez v.

Hongkong & Shanghai Banking Corporation, 562 Phil.841, 858 (2007),90 562 Phil.841 (2007) 91 Id. at 858.92 Rollo, pp.811-814.93 There is no Entry of Judgment of the Pasig civil case attached to the rollo,94 Rollo, p.812.95 Id. at 683-691, Formal Offer of Documentary Evidence, and 697-710, Trust Receipt Agreements.96 Id.

  • At 814.97 562 Phil.841, 860 (2007),98 136 Phil.475 (1969),99 Id.
  • At 488.100 G.R.
  • No.226130, February 19, 2018,,101 Id.102 Rollo, pp.683-694.103 See Tupaz IV v.
  • Court of Appeals, 512 Phil.47, 56-64 (2005) ; Ong v.
  • Court of Appeals, 449 Phil.691, 709-711 (2003) ; and Prudential Bank v.
  • Intermediate Appellate Court, 290-A Phil.1, 17-21 (1992) 104 512 Phil.47 (2005),105 Id.

at 56-57. The Lawphil Project – Arellano Law Foundation

Is a demurrer denied or overruled?

If a cause of action has been stated, the superior court overrules the demurrer and the case continues on.

Does a demurrer stay discovery?

The court will not stay all discovery simply because a party has filed a demurrer or motion to strike. California law permits discovery to proceed while the pleadings develop.

What is the effect of filing a demurrer to evidence without leave of court?

WHAT IS THE EFFECT OF FILING THE DEMURRER TO EVIDENCE WITHOUT LEAVE OF COURT? –

  •  If the court denies the demurrer to evidence which was filed without leave of court, the accused is deemed to have waived his right to present evidence and submits the case for judgment on basis of the evidence of the prosecution
  •  This is because demurrer to evidence is not a matter of right but is discretionary on the court
  •  Permission of the court has to be obtained before it is filed, otherwise the accused loses certain rights

What is the effect of demurrer *?

“Once a demurrer to evidence has been granted in a criminal case, the grant amounts to an acquittal. Any further prosecution for the same offense would violate the accused’s constitutional right against double jeopardy.” Thus held the Supreme Court as it dismissed the petition of the State, represented by the Office of the Ombudsman through the Office of the Special Prosecutor, assailing the rulings of the Sandiganbayan which granted the Demurrer to Evidence filed by former diplomat Lauro L Baja, Jr.

and dismissed the prosecution’s case against him for violation of Section 3(e) of RA 3019, or the Anti-Graft and Corrupt Practices Act, Baja purportedly incurred questionable representation expenses in 2003, 2004, and 2005 totaling to $28,934.96 when he was the Philippine Permanent Representative to the United Nations (UN) and Chief of Mission I, Department of Foreign Affairs for the Philippine Mission to the United Nations, New York City, United States of American.

He was the Philippine Representative to the UN from 2003 to 2007. Citing its 2002 ruling in People v. Sandiganbayan, the Court reiterated that once a demurrer to evidence has been granted in a criminal case, the grant amounts to an acquittal, and any further prosecution for the same offense would violate Article III, Section 21 of the Constitution.

The Court, however, pointed out that the “only time when assailing the grant of a demurrer to evidence will not violate the right against double jeopardy is when the trial court is shown to have gravely abused its discretion, such that the prosecution’s right to due process was violated, denying it the opportunity to present its case.

The Court ruled that the Sandiganbayan’s grant of Demurrer to Evidence was proper. The Court explained that the Information specifically charged Baja with claiming and receiving reimbursement for non-existent or fictitious representation expenses, and not for merely submitting incomplete documents to support his claims.

As the Sandiganbayan noted, the irregularities in the supporting documents were insufficient positive proof of the alleged nonpayment. The prosecution bore the burden to prove the allegations in the Information. If its evidence was insufficient to establish the elements of the offense charged, respondent Baja’s guilt could not have been proved beyond reasonable doubt.

Legal definition of Demurrer

The Court further held that contrary to the State’s claims, the Sandiganbayan did not commit “gross misapprehension of facts” tantamount to abuse of discretion which would warrant the reversal of its grant of Demurrer to Evidence. “A review of the Sandiganbayan’s March 20, 2017 and June 27, 2017 Resolutions shows that the Sandiganbayan did not commit a gross misapprehension of the facts in the case.

  1. Its findings were based on the evidence presented by the prosecution.
  2. As the Sandiganbayan pointed out, while the prosecution proved that respondent Baja’s expenses were improperly documented, it failed to present enough evidence that would lead to a conclusion that these expenses were completely fictitious or non-existent,” the Court said.

“Petitioner was unable to show that the Sandiganbayan, in granting the Demurrer, blatantly abused its authority as to deprive itself of ‘its very power to dispense justice.’ The Sandiganbayan did not commit grave abuse of discretion. To reverse its grant of the Demurrer to Evidence and dismissal of the case would be to violate respondent Baja’s right against double jeopardy,” stated the Court.

What is the ground for filing a motion for demurrer to evidence?

Philippine Supreme Court Jurisprudence January 2017 – Philippine Supreme Court Decisions/Resolutions G.R. No.187448, January 09, 2017 REPUBLIC OF THE PHILIPPINES, Petitioner, v. ALFREDO R. DE BORJA, Respondent, Before this Court is an Appeal by Certiorari 1 filed under Rule 45 of the Rules of Court (Petition), seeking review of the Resolutions dated July 31, 2008 2 and March 25, 2009 3 issued by the Sandiganbayan (SB) – First Division in Civil Case No.0003.4 The Resolution dated July 31, 2008 granted respondent Alfredo De Borja’s (De Borja) Demurrer to Evidence dated April 15, 2005 5 (Demurrer to Evidence), while the Resolution dated March 25, 2009 denied petitioner Republic of the Philippines’ (Republic) Motion for Reconsideration dated August 15, 2008 6 of the Resolution dated July 31, 2008.

The Factual Antecedents The case stems from a Complaint 7 filed by petitioner Republic, represented by the Presidential Commission on Good Government, for “Accounting, Reconveyance, Forfeiture, Restitution, and Damages” (Complaint) before the SB (Civil Case No.0003) for the recovery of ill­-gotten assets allegedly amassed by the individual respondents therein, singly or collectively, during the administration of the late President Ferdinand E.

Marcos.8 Geronimo Z. Velasco (Velasco), one of the defendants in Civil Case No.0003, was the President and Chairman of the Board of Directors of the Philippine National Oil Company (PNOC).9 Herein respondent De Borja is Velasco’s nephew.10 It appears from the records that PNOC, in the exercise of its functions, would regularly enter into charter agreements with vessels and, pursuant to industry practice, vessel owners would pay “address commissions” to PNOC as charterer, amounting to five percent (5%) of the total freight.11 Allegedly, during the tenure of Velasco, no address commissions were remitted to PNOC.12 Instead, starting 1979, the percentage of the address commission no longer appeared in the charter contracts and the words “as agreed upon” were substituted therefor, per instructions of Velasco.13 As a result, the supposed address commissions were remitted to the account of Decision Research Management Company (DRMC), one of the defendant corporations in Civil Case No.0003 and the alleged conduit for address commissions.14 Velasco was likewise alleged to have diverted government funds by entering into several transactions involving the purchase of crude oil tankers and by reason of which he received bribes, kickbacks, or commissions in exchange for the granting of permits, licenses, and/or charters to oil tankers to service PNOC.15 Given the foregoing, petitioner Republic claimed that it was De Borja who collected these address commissions in behalf of Velasco, basing its allegation on the testimony of Epifanio F.

  • On April 15, 2005, respondent De Borja filed his Demurrer to Evidence of even date, stating therein, among others: (i) that Verano, on two (2) occasions, testified that he delivered an envelope to Velasco who, in tum, instructed him to deliver the same to De Borja; (ii) that Verano admitted that the envelope was sealed; (iii) that Verano did not open the envelope and therefore had no knowledge of the contents thereof; (iv) that Verano did not deliver the envelope personally to De Borja; and (v) that Verano did not confirm whether De Borja in fact received the said envelope.19
  • In tum, petitioner Republic filed a Comment Opposition dated May 9, 2005, 20 to which respondent De Borja filed a Reply dated June 2, 2005.21
  • Ruling of the SB
  • chanRoblesvirtualLawlibrary

In its Resolution dated July 31, 2008, the SB found that the evidence presented was insufficient to support a claim for damages against De Borja, thereby granting respondent De Borja’s Demurrer to Evidence. In the said Resolution, the SB ratiocinated: After an assessment of the arguments raised by defendant De Borja and the comments thereto of plaintiff, this Court finds that the plaintiff has failed to present sufficient evidence to prove that defendant De Borja is liable for damages as averred in the complaint,Among the witnesses presented by plaintiff, the Court focused on the testimony of the witness for plaintiff Epifanio F.

  • Verano, who was presented to prove that on two occasions, defendant Velasco instructed Verano to deliver to defendant De Borja envelopes containing money which constituted commissions given by ship brokers.
  • Upon cross-examination, however, witness Verano admitted that although he was instructed to deliver two envelopes to the office of De Borja, he did not know for a fact that De Borja actually received them.

Moreover, witness Verano testified that after he delivered the envelopes, he did not receive any word that they did reach De Borja, nor did Verano confirm De Borja’s receipt of them, x x x xPlaintiff also sought to prove defendant De Boija’s participation in the alleged utilization of public funds by the affidavit executed by Jose M.

Reyes. However, the affiant Jose M. Reyes never testified in open court, as he had a heart attack two days before he was scheduled to take the witness stand. x x x x x x In this case, where the plaintiff’s evidence against defendant De Borja consists only of Verano’s testimony and Reyes’ affidavit, no preponderance of evidence has been satisfactorily established,22 ( Emphasis supplied ) ChanRoblesVirtualawlibrary Petitioner Republic then filed its Motion for Reconsideration dated August 15, 2008, 23 which was denied by the SB in the Resolution March 25, 2009.Hence, petitioner Republic filed the instant Petition solely with respect to the liability of respondent De Borja, claiming that the SB erred in granting the Demurrer to Evidence and in denying its Motion for Reconsideration dated August 15, 2008.

In a Resolution dated July 15, 2009, 24 the Court required respondent De Borja to file a Comment. In compliance with the Court’s directive, respondent De Borja filed his Comment dated September 11, 2009, 25 cralawred reiterating the insufficiency of the evidence adduced before the SB ( e.g.

, testimony of Verano, affidavit of deceased Jose M. Reyes). Petitioner Republic then filed its Reply dated June 10, 2010 26 in due course. A Motion for Early Resolution dated June 7, 2011 27 was thereafter filed by respondent De Borja, which was noted by the Court in its Resolution dated August 10, 2011.28 Parenthetically, on June 16, 2011, the SB rendered a Decision dismissing Civil Case No.0003 with respect to the remaining respondents therein.

This, in turn, was subject of an appeal before this Court 29 and docketed as G.R. No.199323, entitled “Republic of the Philippines vs. Geronimo Z. Velasco, et al”. On July 28, 2014, the Court rendered a Resolution, denying the appeal. Thereafter, an Entry of Judgment was made with respect to G.R.

  1. No.199323.
  2. Subsequently, on December 6, 2016, respondent De Borja filed a Motion to Dismiss dated December 2, 2016, 30 on the ground that the Petition had been rendered moot and academic by reason of the said Entry of Judgment, which affirmed the June 16, 2011 Decision and November 15, 2011 Resolution of the SB that dismissed Civil Case No.0003.

Issue The issue presented for the Court’s resolution is whether or not the SB committed reversible error in granting respondent De Borja’s Demurrer to Evidence. The Court’s Ruling Before proceeding to the substantive issue in this case, and for the guidance of the bench and bar, the Court finds it proper to first discuss procedural matters.

  1. A demurrer to evidence is a motion to dismiss on the ground of insufficiency of evidence.
  2. It is a remedy available to the defendant, to the effect that the evidence produced by the plaintiff is insufficient in point of law, whether true or not, to make out a case or sustain an issue.31 The question in a demurrer to evidence is whether the plaintiff, by his evidence in chief, had been able to establish a prima facie case.32 In Felipe v.

MGM Motor Trading Corp., 33 wherein the propriety of the trial court’s granting of a demurrer to evidence was the crux of the controversy, we held that a review of the dismissal of the complaint naturally entailed a calibration of the evidence on record to properly determine whether the material allegations of the complaint were amply supported by evidence.

This being so, where the resolution of a question requires an examination of the evidence, the credibility of the witnesses, the existence and the relevance of surrounding circumstances, and the probability of specific situations, the same involves a question of fact.34 In this regard, the Court emphasizes that factual questions are not the proper subject of a petition for review under Rule 45, the same being limited only to questions of law.35 Not being a trier of facts, the Court is not duty­-bound to analyze and weigh again the evidence already considered in the proceedings below.36 For such reasons, the Court has consistently deferred to the factual findings of the trial court, in light of the unique opportunity afforded them to observe the demeanor and spontaneity of the witness in assessing the credibility of their testimony.37 Further, in his Comment dated September 11, 2009, respondent De Borja points out the inadvertence of petitioner Republic, through the Office of the Solicitor General, to submit proof of service on the Sandiganbayan of a copy of the instant Petition and the preceding Motion for Extension of Time to File Petition for Review dated April 29, 2009.38 In this regard, the failure of petitioner Republic to strictly comply with Section 5(d), Rule 56 of the Rules of Court already renders its Petition dismissible.39 Nevertheless, considering that rules of procedure are subservient to substantive rights, and in order to finally write finis to this prolonged litigation, the Court hereby dispenses with the foregoing lapses in the broader interest of justice.

The Court has repeatedly favored the resolution of disputes on the merits, rather than on procedural defects. Further, anent the claim of respondent De Borja that the Petition had already been rendered moot and academic due to the dismissal of Civil Case No.0003 by the SB, the Court finds the same lacking in merit.

  1. It is axiomatic that a dismissal on the basis of a demurrer to evidence is similar to a judgment; it is a final order ruling on the merits of a case.40 Hence, when petitioner Republic brought the instant appeal before this Court, the same was limited to respondent De Borja’s liability alone.
  2. In this regard, the propriety of the SB’s granting of respondent De Borja’s Demurrer to Evidence, which is the subject matter of this case, is separate and distinct from the subject matter of the appeal in G.R.

No.199323, i.e., liability of Velasco, et al. Thus, respondent De Borja’s claim in his Motion to Dismiss that “the complaint against was dismissed not only once but twice” is inaccurate and legally flawed. Perforce, it is of no moment that the SB dismissed Civil Case No.0003 as the same was merely with respect to the respondents other than respondent De Borja who, by then, was already confronted with the instant appeal brought by petitioner Republic.The singular question for the Court now is this: whether petitioner Republic was able to adduce sufficient evidence to prove the alleged complicity of respondent De Borja with the required quantum of evidence.After a judicious review of the records and the submissions of the parties, the Court rules in the negative.

Case law has defined “burden of proof” as the duty to establish the truth of a given proposition or issue by such quantum of evidence as the law demands in the case at which the issue arises.41 In civil cases, the burden of proof is on the plaintiff to establish his case by preponderance of evidence, i.e.

, superior weight of evidence on the issues involved.42 “Preponderance of evidence” means evidence which is of greater weight, or more convincing than that which is offered in opposition to it.43 In a demurrer to evidence, however, it is premature to speak of “preponderance of evidence” because it is filed prior to the defendant’s presentation of evidence; it is precisely the office of a demurrer to evidence to expeditiously terminate the case without the need of the defendant’s evidence.44 Hence, what is crucial is the determination as to whether the plaintiffs evidence entitles it to the relief sought.

Specifically, the inquiry in this case is confined to resolving whether petitioner Republic is entitled to “Accounting, Reconveyance, Forfeiture, Restitution, and Damages” based on the evidence it has presented.As repeatedly stressed by respondent De Borja, the only evidence presented with respect to his liability is the testimony of Verano and the affidavit of one Jose M.

Reyes, as summarized below:(i) Affidavit of Jose M. Reyes With respect to the affidavit of Jose M. Reyes, his non-appearance before the SB due to his untimely demise rendered the same inadmissible in evidence for being hearsay, as correctly observed by the SB.45 (ii) Testimony of Verano Verano was presented to prove that on two (2) occasions, Velasco had instructed him to deliver to De Borja envelopes allegedly containing the “address commissions”.46

SOL URETA
Q: Could you tell us about, if you know, any particular instance any payment by address commission to PNOC?
A: I begly ( sic ) recall. A broker coming to the house handing me a brown envelope for delivery to the Minister.
Q: Who is the Minister?
A: Minister Velasco.
x x x x
Q: Do you know the contents of that envelope, Mr. witness?
A: It was sealed. Since it is for somebody else I did not open it.
Q: What did he say at that time he handed to you that envelope?
A: He said that is from “X-C”.
x x x x
Q: Would you tell us what was your understanding as to the contents of that particular envelope?
ATTY. MENDOZA
Objection, your Honor please, it calls for an opinion.
PJ GACHITORENA
Lay the basis.
SOL URETA
Q: Mr. witness, according to you the envelope was given to you and for what purpose again?
ATTY. MENDOZA
Already answered. He said it was to be delivered.
PJ GACHITORENA
Q: And he did not know the contents because it was a sealed envelope.
SOL URETA
Q: Were there any indication from Mr. Heger at that time as to what that particular envelope contained?
A: No, he did not say so.
Q: But then could you tell us what was your impression.
PJ GACHITORENA
Impression as to what?
SOL URETA
As to the nature of delivery.
ATTY. MENDOZA
Objection, that calls for an opinion.
x x x x
PJ GACHITORENA
It could contain shirt, it could contain pieces of paper, it could contain clippings. You must show that you have basis for that question. But in fact he said, he do ( sic ) not know. He did ( sic ) know what contents was ( sic ). Any question along that line will be a guess. He is not expert at feelings ( sic ) things in coming out with a result. We know which was you want ( sic ) to go and for that very reason Mr. Mendoza is objecting because you give us the false.
Q: What did you do with that envelope for heaven’s sake?
A: I brought it to him. What will I do with it it’s not mine. I was told to give it to the Minister.
SOL URETA
Q: What happened when you weren’t ( sic ) to the Minister?
A: To bring it to the office of Mr. de Borja.
x x x x
Q: What did Mr. Velasco say with respect to that envelope.
A: He told me to bring it to Mr. de Borja.
Q: Who is Mr. de Borja?
A: At that time he was connected with Gerver.
Q: What happened when you brought it to the office of Mr. de Borja?
A: I brought it to the office of Mr. de Borja and he wasn’t there, so I just left it.
x x x x
SOL URETA
Q: Were there other occasions when envelope ( sic ) was given to you by a broker?
A: I recall once in early 80’s.
Q: Who was the particular broker that brought to you the envelope?
A: Mr. David Reynolds.
Q: Will you tell us the circumstance of that delivery?
A: Well, he just came to the office I thought he was going there for a cup of coffee and then he said give this to Mr. Velasco, that’s it.
Q: Did you know where that envelope that ( sic ) particular time?
A: I brought it over to Makati because I was holding office along Roxas Blvd.
Q: To whom did you bring that envelope?
A: To the office of Mr. Velasco.
Q: What happened afterwards when you brought the envelope to Mr. Velasco?
A: Again he told me to bring it over to Gerver.
Q: Did you bring it to Gerver ?
A: I left it there.
PJ GACHITORENA
Q: To whom did you left ( sic ) it?
A: Supposed to be for Mr. de Borja, but Mr. de Borja was not around.
x x x x
Q: The first one, when was it more or less, when somebody called, Mr. Heger?
A: Late ’70’s, your Honor.47 (Additional emphasis supplied)

Moreover, during Verano’s cross-examination, it was revealed that he was not knowledgeable of the contents of the envelopes and that he also never confirmed whether respondent De Borja had actually received them: chanRoblesvirtualLawlibrary

Q: Referring to this envelope which you mentioned in your direct testimony, both the envelopes delivered by Mr. Hagar to you and Mr. Reynolds. They were sealed?
A: Right.
Q: You did not open them?
A: No, sir.
Q: When you brought to the Office of Mr. Velasco they remained sealed?
A: They remained sealed.
Q: And when you brought them to the Office of Mr. De Borja.
A: They remained sealed,
PJ GACHITORENA
Q: Regarding these two envelopes, you said that you delivered these envelopes in the Office of Mr. de Borja?
A: Yes, your Honor.
Q: But de Borja was not around at that time?
A: That is right.
PJ GACHITORENA
Q: After delivery did you receive any word that the envelopes did not reach Mr. de Borja?
WITNESS
A: I did not receive any report.
Q: From anybody?
A: From anybody.
Q: Did you meet Mr. de Borja anytime before the delivery?
A: No, sir.
Q: Subsequently did you meet Mr. de Borja?
A: Yes.
Q: Did you bring the matter of the envelope?
A: No, sir.
Q: Did he bring the matter with you?
A: No, sir.,48
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In the face of the foregoing testimony, the insinuations of petitioner Republic in the instant Petition can best be described as speculative, conjectural, and inconclusive at best. Nothing in the testimony of Verano reasonably points, or even alludes, to the conclusion that De Borja acted as a dummy or conduit of Velasco in receiving address commissions from vessel owners.

The Court joins and concurs in the SB’s observations pertaining to Verano’s want of knowledge with respect to the contents of the envelopes allegedly delivered to respondent De Borja’s office, which remained sealed the entire time it was in Verano’s possession. As admitted by Verano himself, he did not and could not have known what was inside the envelopes when they were purportedly entrusted to him for delivery.

In the same vein, Verano did not even confirm respondent De Borja’s receipt of the envelopes, despite numerous opportunities to do so. Relatedly, it was further revealed during the cross-examination of Verano that in the first place, Velasco did not even deal directly with brokers.49 All told, the Court finds that the evidence adduced is wholly insufficient to support the allegations of the Complaint before the SB.

  • Thus, for failure of petitioner Republic to show any right to the relief sought, the Court affirms the SB in granting the Demurrer to Evidence.
  • WHEREFORE, premises considered, the Petition is DENIED and the Resolutions dated July 31, 2008 and March 25, 2009 of the Sandiganbayan – First Division in Civil Case No.0003 are hereby AFFIRMED,

SO ORDERED. cralawlawlibrary Sereno, C.J., (Chairperson), Leonardo-De Castro, Del Castillo, and Perlas-Bernabe, JJ., concur. chanRoblesvirtualLawlibrary Endnotes : 1 Rollo, pp.11-32.2 Id. at 54-63. Penned by Presiding Justice Diosdado M. Peralta (now a Member of this Court), with Associate Justices Rodolfo A.

Ponferrada and Efren N. De La Cruz concurring.3 Id. at 49-52. Penned by Associate Justice Norberto Y. Geraldez, with Associate Justices Efren N. De La Cruz and Rodolfo A. Ponferrada concurring.4 Entitled ” Republic of the Philippines v. Geronimo Z. Velasco, Ferdinand E. Marcos, Imelda R. Marcos, Alfredo R. De Borja, Epifanio Verano, Gervel Inc., Telin Development Corporation, Republic Glass Corporation, Nobel (Phils.) Inc., ACI Philippines, Inc., Private Investments Co.

for Asia, Central Azucarera De Danao, Malaganas Coal Mining Corporation, S.A. (Panama), Decision Research Management (Hongkong), Atlantic Management Corp. (USA) “.5 Rollo, pp.484-508.6 Id. at 68-74.7 Third Amended Complaint dated September 20, 1991 (id.

  1. 12 See id.
  2. 13 Id.
  3. 14 Id.

15 Id. at 200-201.16 Vice President of PNOC and allegedly acted as negotiator for PNOC with respect to the chartered vessels (id. at 203). While originally, Epifanio F. Verano was a defendant, in the SB’s Resolution dated March 21, 1995, the PCGG granted him full immunity from criminal prosecution in exchange for his testimony in connection with Civil Case No.0003 (See rollo, p.379).17 Id.

At 203.18 Id. at 328-352.19 Id. at 487-488.20 Id. at 509-525.21 Id. at 22.22 Id. at 60-62.23 Id. at 68-74.24 Id. at 527-528.25 cralawred Id. at 545-583.26 Id. at 645-654.27 Id. at 659-662.28 Id. at 665.29 First Division.30 Rollo, pp.667-678.31 See Felipe v. MGM Motor Trading Corp., G.R. No.191849, September 23, 2015, p.5.32 Spouses Condes v.

Court of Appeals, 555 Phil.311, 323 (2007).33 Felipe v. MGM Motor Trading Corp., supra note 31, at 5-6.34 Zoleta v. Sandiganbayan (Fourth Division), G.R. No.185224, July 29, 2015, 764 SCRA 110, 121.35 Section 1, Rule 45, RULES OF COURT.36 Miro v. Vda. de Erederos, 721 Phil.772, 785 (2013).37 See People v.

Gahi, 727 Phil.642, 658 (2014).38 Rollo, pp.547-548.39 SEC.5. Grounds for dismissal of appeal, – The appeal may be dismissed motu proprio or on motion of the respondent on the following grounds: chanRoblesvirtualLawlibrary x x x x (d) Failure to comply with the requirements regarding proof of service and contents of and the documents which should accompany the petition; ChanRoblesVirtualawlibrary 40 Republic v.

Gimenez, G.R. No.174673, January 11, 2016, p.2.41 Far East Bank & Trust Company v. Chante, 719 Phil.221, 233 (2013).42 Section 1, Rule 133, RULES OF COURT.43 Spouses Condes v. Court of Appeals, supra note 32.44 Id. at 323-324.45 See rollo, p.61.46 Id.

How many times can you demurrer?

Code of Civil Procedure § 430.41 – SB 383 Limits Demurrers in California Effective January 1, 2016, SB 383 severely limits the use of demurrers in California through newly-enacted California Code of Civil Procedure § 430.41. Under existing law, a party in a civil action may object to a complaint, cross-complaint, or answer by demurrer, thereby alleging that the pleading fails to state a claim or is otherwise defective.

  1. If such motions are granted, the case can be potentially terminated from the outset.
  2. However, the sponsors of SB 383 claimed Lawyers would be wise to come up to speed on the unique aspects of the new statute, explained below.1.
  3. Meet and Confer Requirement Before Demurrer to Initial Pleading or Amended Pleading First, California Code of Civil Procedure (CCP) § 430.41(a) imposes a requirement before filing a demurrer that the parties meet and confer “for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” This same subsection also imposes a further “meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.” 2.

Content of Meet and Confer Second, California Code of Civil Procedure § 430.41(a)(1) specifies the content of the meet and confer process, explaining that “the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.

The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.” However, as explained below, it is not clear whether there are any ramifications to a defective meet and confer, so long as it occurs.3.

Automatic 30-Day Extension for Failure to Meet and Confer Third, California Code of Civil Procedure § 430.41(a)(2) provides that: “The parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.

The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.” In other words, avoiding the phone call or email of opposing counsel will not provide a plaintiff any advantage, but instead may delay the plaintiff’s case.4.

Meet and Confer Declaration Required With Every Demurrer Fourth, California Code of Civil Procedure § 430.41(a)(3) requires that: “The demurring party shall file and serve with the demurrer a declaration stating either of the following: (A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.

(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” However, the statute does not provide any specific remedy for an insufficient meet and confer, instead providing that: “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” California Code of Civil Procedure § 430.41(a)(4).5.

Inability to Demur to Amended Pleading on Grounds That Could Have Been Raised in Demurrer to an Earlier Pleading Fifth, California Code of Civil Procedure § 430.41(b) eliminates the ability of counsel to repeatedly demur to portions of a pleading that remain unchanged.

Specifically, it provides that: “A party demurring to a pleading that has been amended after a demurrer to an earlier version of the pleading was sustained shall not demur to any portion of the amended complaint, cross-complaint, or answer on grounds that could have been raised by demurrer to the earlier version of the complaint, cross-complaint, or answer.” This subdivision may require creative lawyering, as plaintiffs and cross-complainants will be able to argue that points in a demurrer to an amended pleading could have been raised in opposition to a prior pleading.

In practice, this will severely limit the ability of defendants and cross-defendants to demurrer to portions of a complaint that remain unchanged.6. Potential Court-Ordered Conferences Regarding Amendments to Pleadings Sixth, California Code of Civil Procedure § 430.41(c) allow the court to order a conference after granting leave to amend, presumably under the belief that such a meeting will prevent further demurrers.

Specifically, the subsection provides that: “If a court sustains a demurrer to one or more causes of action and grants leave to amend, the court may order a conference of the parties before an amended complaint or cross-complaint or a demurrer to an amended complaint or cross-complaint, may be filed.

If a conference is held, the court shall not preclude a party from filing a demurrer and the time to file a demurrer shall not begin until after the conference has concluded. Nothing in this section prohibits the court from ordering a conference on its own motion at any time or prevents a party from requesting that the court order a conference to be held.” This provision would most likely be invoked in complicated or hotly-disputed cases to avoid the judicial resources used in ruling on repeated demurrers.7.

  1. Three Amendment Limit Subject to Four Exceptions Seventh, California Code of Civil Procedure § 430.41(e) provides certain limitations on the ability to amend pleadings in response to demurrers.
  2. Specifically, subsection(e)(1) provides that: “In response to a demurrer and prior to the case being at issue, a complaint or cross-complaint shall not be amended more than three times,

,” However, there are four exceptions to this three-amendment limit found in the text of the new statute. The first exception is found in the text of subsection(e)(1), which provides that the three-strikes rule is only for amendments: “In response to a demurrer and prior to the case being at issue,

  1. In other words, the three strikes appears to apply only to amendments after a demurrer is sustained, not to amendments made after a meet and confer.
  2. The second exception is found in subsection(e)(1), which provides that the rule applies only “absent an offer to the trial court as to such additional facts to be pleaded that there is a reasonable possibility the defect can be cured to state a cause of action.” In other words, the longstanding practice of courts to allow amendments if an amendment can cure the defect remains.

The third exception is found in subsection(e)(1), which explains that: “The three-amendment limit shall not include an amendment made without leave of the court pursuant to Section 472, provided the amendment is made before a demurrer to the original complaint or cross-complaint is filed.” In turn, Section 472 of the California Code of Civil Procedure is also amended by SB 383, which now permits an amendment to a pleading after a demurrer only if the amendment is filed and served “no later than the date for filing an opposition to the demurrer.” This means that the days of amendments on the eve of the hearing on the demurrer are over.

The fourth exception is found in subsection (e)(2), which provides that: “Nothing in this section affects the rights of a party to amend its pleading or respond to an amended pleading after the case is at issue.” In practice, this statute should severely limit the abusive use of demurrers while also limiting non-abusive demurrers that could have terminated litigation at the outset.

Moreover, it is likely that the use of motions for judgment on the pleadings will increase as there are no such limitations on these motion under SB383, despite their procedural similarity to demurrers. The statute includes a sunset clause providing that this experiment will end automatically on January 1, 2021 unless the legislature decides otherwise.

Only time will tell if this statute will have the desired effect, and what side-effects will result.— of California Code of Civil Procedure § 430.41:

(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.

  • If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.
  • 1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.

The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.(2) The parties shall meet and confer at least five days before the date the responsive pleading is due.

If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.

The 30-day extension shall commence from the date the responsive pleading was previously due, and the demurring party shall not be subject to default during the period of the extension. Any further extensions shall be obtained by court order upon a showing of good cause.(3) The demurring party shall file and serve with the demurrer a declaration stating either of the following:(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer.

What happens if a demurrer is sustained without leave to amend?

JOHN R. SOUSA et al., Plaintiffs and Respondents, v. CAPITAL COMPANY et al., Defendants and Appellants. COUNSEL Erskine & Tully for Defendants and Appellants. Thomas, Beedy, Nelson & King, John E. Anderton and Richard H. Perry for Plaintiffs and Respondents.

OPINION BRAY, P.J. Defendants appeal from an order vacating plaintiffs Sousas’ default and a default judgment thereon after plaintiffs failed to file a third amended complaint. QUESTIONS PRESENTED.1. May a clerk enter default for plaintiffs’ failure to amend complaint? 2. Is the method provided by section 581, subdivision 3, Code of Civil Procedure, for the dismissal of an action upon failure of the plaintiff to amend complaint after demurrer sustained with leave to amend, exclusive? 3.

Was plaintiffs’ motion under section 473, Code of Civil Procedure, to set aside the default judgment, in time? 4. Did the trial court abuse its discretion in setting aside the judgment? 5. Was the application for relief supported by affidavit of merits and proposed amended complaint? RECORD.

  1. Plaintiffs John H.
  2. Sousa, Hester M.
  3. Sousa and Central Office Building, a corporation, filed their second amended complaint against Capital Company, a corporation, Edward F.
  4. Ryan, John Sassell and several Does.
  5. On November 21, 1960, the general and special demurrer of defendants Capital and Sassell was sustained, as to the Sousas, who were given 15 days to amend.

At the same time the motion of defendants Capital and Sassell to strike portions of that complaint was granted in part. Also, on stipulation, the demurrer of all defendants to that complaint was sustained without leave to amend as to plaintiff Central Office Building, and the motion for summary judgment made by defendant Ryan was granted.

  • Notice of these decisions was served upon the Sousas on December 1.
  • December 13, the Sousas’ counsel orally requested of defendants’ counsel 15 days’ additional time to file an amended complaint.
  • On December 15 a stipulation extending the time of all plaintiffs including Central Office Building to December 30, to “move or take any other proceeding” of which they might be advised, was filed.

On the same day, the judgment in favor of Ryan and against Central Office Building was signed and filed. December 29, a notice of appeal by all plaintiffs including Central Office Building from all parts of the judgment filed December 15, together with a notice to the clerk to prepare transcript, was served upon defendants.

Thereafter defendants’ counsel extended plaintiffs’ time to file a third amended complaint until January 5, 1961, in a letter in which defendants’ counsel stated that he did not know the effect the appeal taken by plaintiffs would have in respect to further prosecution of the action in favor of the Sousas alone, but as a matter of courtesy he desired to call attention to the matter “and to keep your time open with respect thereto so that you could further consider the matter.” The Sousas thereafter sought no further extensions, either from court or counsel, nor did they ask for a stay.

May 5, 1961, on application of defendants, without notice, the clerk entered the Sousas’ default for failure to amend. Thereafter, on December 1, 1961, a judgment based on the order sustaining the demurrer was signed by the court and filed. fn.1 On March 19, 1962, the Sousas served and filed a notice of motion to vacate the clerk’s entry of default and the judgment of December 1, 1961.

This motion was made under section 473, Code of Civil Procedure, on the grounds of surprise, excusable neglect and mistake, and on the further ground that the judgment “was entered in excess of jurisdiction” as “the rulings on demurrer were pending appeal” at the time of entry of the default, and the default judgment.

The motion was granted. Defendants Capital Company and Sassell appeal from that order.1. DEFAULT BY CLERK. Plaintiffs contend and the court held, that where a plaintiff fails to amend his complaint after demurrer sustained with leave to amend, the clerk has no authority to enter a default, but the only procedure open to a defendant to obtain a default judgment is a motion to dismiss under section 581, subdivision 3, Code of Civil Procedure.

  • That section provides: “An action may be dismissed,3.
  • By the court,
  • When, after a demurrer to the complaint has been sustained, the plaintiff fails to amend it within the time allowed by the court, and the defendant moves for such dismissal.” There is no code provision for the entry of a default or a default judgment where the plaintiff fails to amend his complaint after demurrer thereto sustained.

Sections 585 and 586, Code of Civil Procedure, deal only with default by a defendant. The only code section dealing with a default of a plaintiff is the above section 581, subdivision 3, which, however, does not speak of a default but of a dismissal based upon motion.

  1. The question as to whether this section provides an exclusive method of dealing with the failure of a plaintiff to amend has not been flatly decided in this state.
  2. Defendants point out that there is a conflict in the decisions as to whether when time is given to amend a pleading, and it is not amended within that time, there is an actual default, or whether by not seeking to take advantage of the failure to amend the opponent is deemed, by conduct, to grant additional time and the party is not strictly in default.

Defendants then contend that under either theory the clerk may enter the default when requested. An examination of the cases cited by defendants concerning these theories shows that they were cases involving demurrers sustained without leave to amend, or if with leave to amend, they were cases in which motions were made under section 581, subdivision 3, or cases that did not consider section 581, subdivision 3, at all.

As will hereinafter appear, the courts have adopted more than one type of procedure to obtain dismissal of an action where a demurrer has been sustained without leave to amend, or where the plaintiff has failed to amend after demurrer sustained with leave to amend. Michaels v. Mulholland (1953) 115 Cal.

App.2d 563, 564, was a case of demurrer to second amended complaint sustained without leave to amend. The reviewing court held, without discussion or considering section 581, subdivision 3, that no formal motion to dismiss the action was necessary. In Wilson v.

  • City of Los Angeles (1958) 156 Cal.
  • App.2d 776, the demurrer to the complaint was sustained with leave to amend.
  • The complaint not having been amended in the time allotted, the defendant moved under section 581, subdivision 3, for a dismissal, which was granted.
  • The order of dismissal was affirmed on appeal.

The court’s opinion stated that “the judgment of dismissal ensues as a matter of course,” (P.778.) In Legg v. United Benefit Life Ins. Co. (1960) 182 Cal. App.2d 573, in upholding a judgment of dismissal based on an order sustaining demurrer to complaint without leave to amend, the court, citing Michaels v.

  • Mulholland, supra, 115 Cal.
  • App.2d 563, and Berri v.
  • Superior Court, infra, 43 Cal.2d 856, held that a formal motion to dismiss is not required.
  • It also stated, citing Oppenheimer v.
  • Deutchman (1955) 132 Cal.
  • App.2d Supp.875, that no notice of a motion to dismiss is required.
  • It is interesting to note that in Oppenheimer the order of dismissal of the action for failure of the plaintiff to amend his complaint within the allowed time, was made, but no notice of the motion to dismiss was given.

In holding that no notice is required, the court pointed out that section 581, subdivision 3, does not require such notice. After referring to “and the defendant moves for such dismissal” contained in the statute, the court said, “The words ‘on motion’ mean that the court cannot dismiss the action without the request of a party.” (P.879.) In Stafford v.

  • Ballinger (1962) 199 Cal.
  • App.2d 289, a judgment of dismissal was entered after demurrers to the third amended complaint were sustained without leave to amend.
  • It does not appear what proceedings were taken to obtain the dismissal.
  • The court said (p.298): “When a demurrer to a complaint has been sustained without leave to amend, the only judgment which properly may be entered is a dismissal of the action.” Rudolph v.

Fulton (1960) 178 Cal. App.2d 339, in affirming a judgment of dismissal based upon an order sustaining demurrer without leave to amend, we said, citing Berri v. Superior Court (1955) 43 Cal.2d 856, and 2 Witkin, California Procedure, p.1496, that such an order “is followed as a matter of course by a judgment of dismissal, which is made and entered in the absence of both parties,” (P.343.) All Witkin, supra, says on the subject is, “If the plaintiff elects not to amend or fails to file an amended pleading within the prescribed time,

A final judgment of dismissal will be rendered against him on motion by the defendant. (P.1496; last italics added.) Rupley v. Huntsman (1958) 159 Cal. App.2d 307, 315, holds that after demurrer sustained with leave to amend, and the plaintiff fails to amend within the specified time, no formal motion to dismiss the action is necessary.

It is not clear how the judgment of dismissal there was obtained. The holding is based upon a statement in Michaels v. Mulholland, supra, 115 Cal. App.2d 563, 564: “The entry of a judgment of dismissal follows as a matter of course.” In Michaels no discussion occurs and no mention is made of section 581, subdivision 3.

Moreover, the demurrer there was sustained without leave to amend. Brown v. Brown (1959) 169 Cal. App.2d 54, was an appeal from an order dismissing a second amended complaint. The demurrer to the first amended complaint had been sustained with 10 days leave to amend. Some 49 days thereafter the plaintiffs filed a second amended complaint.

The defendants then, “under the provisions of section 581, subdivision 3, Code of Civil Procedure, moved to dismiss the amended complaint on the ground that it had not been filed within the time allowed by the court.” (P.55.) Relying on Daniels v. Daniels (1955) 136 Cal.

App.2d 224, which “in effect held that under section 581, subdivision 3, a plaintiff who failed to amend his complaint within the time specified lost his right absolutely to do so and that the order then became equivalent to a judgment and could be reviewed only in the modes prescribed by statute” (Brown v.

Brown, p.56) the defendants contended that the amended complaint could not be filed without an application for and the granting of relief from default. The reviewing court pointed out that section 581 provides, “An action may be dismissed in the following cases:,” (italics added) and that the language is permissive.

  • It then held in effect that failure to amend in the given time did not deny the plaintiffs the right to file their amended complaint thereafter, but on a motion to strike that complaint from the files the court had the discretion to strike or to refuse to strike it.
  • In Berri v.
  • Superior Court, supra, 43 Cal.2d 856, the defendants sought a writ of mandate to compel the court to enter a dismissal of the action pursuant to an order sustaining a demurrer without leave to amend.

It appears that the court, 48 days before the expiration of the five-year period, had made an order sustaining without leave to amend the demurrer to the fifth amended complaint. No judgment was ever entered. An appeal from the order was filed which was later dismissed by the District Court of Appeal on the ground that the order was not appealable.

After the expiration of the five-year period the plaintiff presented a judgment for signing and entry. The court refused, stating “it thought a formal motion for entry of a judgment should be made inasmuch as the five years had elapsed.” The defendants then filed a notice of motion to dismiss for failure to bring the action to trial with the five-year period.

That motion was held in abeyance awaiting the determination of the Supreme Court’s decision on the petition for mandamus to compel the entry of judgment pursuant to the order sustaining the demurrer. The court discussed the effect on the five-year period of the ruling on the demurrer, and pointed out that because no judgment had been entered the plaintiff had not been in a position to test the validity of the order.

  • Hence, until there was a final determination of the validity of the order, the action could not be dismissed because of the expiration of the five-year period.
  • Concerning the matter of dismissal based upon the order sustaining demurrer the court said (pp.859-860): “It is clear that where there has been a judgment of dismissal after demurrer sustained without leave to amend or leave to amend is granted but plaintiff fails to amend within the time allowed, the action is finally terminated by the judgment because there is no longer any pending undetermined action to dismiss.

Actions can be finally disposed of by an order sustaining a demurrer and the entry of an ensuing judgment dismissing the action. Ordinarily, in the absence of a request for a reconsideration, after a demurrer is sustained without leave to amend, as here, no formal motion to dismiss the action is necessary.

The entry of a judgment of dismissal follows as a matter of course. It is only by the entry of the judgment that plaintiff is in a position to test the correctness of the court’s ruling since there is no appeal from a ruling on a demurrer but only from the ensuing judgment. (Michaels v. Mulholland, 115 Cal.

App.2d 563, 564,) Where a demurrer has been sustained without leave to amend, or the time given to amend has expired, the matter has reached such a stage that a final determination of the action is contemplated.” The court pointed out that at any time before the judgment of dismissal pursuant to the order sustaining the demurrer is filed, “the trial court may change its ruling on the demurrer.” (P.861.) The reviewing court then ordered the writ to issue “directing the trial court to enter a judgment of dismissal or overrule the demurrer.” (P.861.) In Goldtree v.

Spreckels (1902) 135 Cal.666, after the trial court had sustained a demurrer to two causes of action of the complaint without leave to amend and thereafter denied the plaintiff’s request for a dismissal of the two causes of action, the clerk on request of the plaintiff’s attorneys entered an order of dismissal.

The court ordered the entry of dismissal by the clerk to be set aside. The Supreme Court upheld the trial court’s order on the ground that there had been a trial on the issue of the validity of the complaint and that the plaintiff could not thereafter dismiss the action.

  1. In Daniels v.
  2. Daniels, supra, 136 Cal.
  3. App.2d 224, the demurrer of the defendant Orrin Daniels to the second count of the amended complaint was sustained, the plaintiff given 10 days to amend.
  4. The demurrer of the defendants Donald and Genevieve Daniels to the entire amended complaint was sustained and the plaintiff given 10 days to amend.

After the time allowed by the court the plaintiff filed a second amended complaint. Thereafter the defendant Orrin Daniels moved to dismiss the second count of that complaint, and the other defendants moved to dismiss the entire second amended complaint.

The trial court granted the motions, stating that it was acting pursuant to section 581, subdivision 3, on the ground that the second amended complaint was not timely filed. The plaintiff then moved under section 473 to set aside the dismissals. This motion was denied. The plaintiff appealed both from the orders of dismissals and the order denying the motion to set aside the dismissals.

The reviewing court held that the order dismissing the second count of the second amended complaint as to Orrin Daniels was not appealable, as being premature. In upholding the order dismissing as to the other two defendants the entire complaint as not timely filed, the court said (pp.227-228): “Under section 581, subdivision 3, of the Code of Civil Procedure an action may be dismissed ‘when, after a demurrer to the complaint has been sustained, the plaintiff fails to amend it within the time allowed by the court, and the defendant moves for such dismissal.’ In Lincoln Holding Corp.v.

  • Union Indem.
  • Co., 129 Cal.
  • App.399, it is said (p.401): ” ‘When plaintiff failed to amend its complaint within the time specified, the right of the plaintiff so to do ceased.
  • The order became equivalent to a judgment and could be reviewed only in the modes prescribed by statute.’ ” There are cases which hold that when a demurrer to a complaint is sustained without leave to amend the clerk may enter a judgment of dismissal.

(Gallardo v. Reed (1874) 49 Cal.346, 347; Lang v. Superior Court (1886) 71 Cal.491, 492 ; Litch v. Kerns (1908) 8 Cal. App.747, 749 ; Le Breton v. Stanley Contracting Co. (1911) 15 Cal. App.429, 434,) In none of these cases was there any discussion of the subject other than the flat statement that the clerk could enter the judgment.

The latter three cases all cite and follow Gallardo. Prior to 1933 when section 581 was amended by the inclusion of subdivision 3, there was no statutory provision for dismissals when a demurrer to a complaint was sustained with or without leave to amend. Therefore, they are of little value in determining the effect of section 581, subdivision 3.

Taliaferro v. Bekin Realty Co. (1959) 176 Cal. App.2d 240, dealt with an appeal from an order denying motion to vacate a default and judgment based upon the plaintiff’s failure to amend his complaint after demurrer sustained and 10 days leave to amend.

Whether section 581; subdivision 3, was followed in the entry of the default judgment does not appear. The “default and judgment in favor of defendants, based upon plaintiff’s failure to amend complaint” (p.242) were upheld. In Craig v. City of Los Angeles (1941) 44 Cal. App.2d 71, the trial court dismissed the action apparently after a default entered by the clerk upon the failure of the plaintiff to amend the complaint after demurrer sustained with leave to amend.

The dismissal was upheld. Mihelich v. Butte Electric Ry. Co. (1929) 85 Mont.604, holds that in Montana, where a plaintiff fails to amend his complaint within the time allowed by the court on sustaining a demurrer to the complaint, the clerk is authorized to enter default.

It appears from a study of the authorities that two and possibly three methods have been used by the courts of California in dismissing an action after the failure of a plaintiff to amend his complaint after demurrer thereto sustained with leave: (1) by following section 581, subdivision 3, Code of Civil Procedure; (2) by a dismissal by the court without notice to the plaintiff.

In some cases this dismissal has been preceded by a clerk’s entry of default; in a third situation, the dismisal has been without a prior entry of default by the clerk. We are of the opinion that the clerk has no authority to enter on his own default in such cases, for two reasons: (1) no such authority appears to be given him expressly or impliedly in the statutes; (2) because as stated in Berri v.

Superior Court, supra, 43 Cal.2d at page 860, “the trial court may reconsider its ruling after such an order but before judgment and come to a different conclusion.” For a clerk to enter a default would be cutting off this power of the court. Therefore, we determine that the entry of default by the clerk in the case at bench was void.

Defendants contend that under the presumption of due legality (Code Civ. Proc., § 1963, subds.15 and 17) we are required to presume that the default entered by the clerk was entered pursuant to order of court. Any such order would have to appear in the record, and there is none.

(See Simons v. Superior Court (1959) 52 Cal.2d 373, 378-379, where the court ordered the clerk to enter in the minutes its order dismissing the complaint.) 2. SECTION 581, SUBDIVISION 3, METHOD OF DISMISSAL NOT EXCLUSIVE. The facts that in this case the clerk’s entry of default was improper and that the court did not proceed under section 581, subdivision 3, does not determine that section 581, subdivision 3, provides an exclusive method of dismissal in cases of this kind, nor that the court’s judgment of December 1, dismissing the action, was void.

The court has an inherent power of control over its proceedings and may enforce any order it makes. Here it sustained the demurrer with leave to amend the complaint within a limited time. Plaintiffs did not so amend. Even without section 581, subdivision 3, the court had the power to enforce its order by dismissing when plaintiffs did not, in effect, comply with the terms upon which the court granted plaintiffs permission to amend.

There is nothing in the section that makes it the exclusive method of dealing with the situation. In dismissing the action under its inherent power, there was no necessity for a prior determination of default. That determination the court had the right to make at the time of dismissal. In Simmons v. Superior Court, supra, 52 Cal.2d 373, in affirming an order dismissing an action after failure of the plaintiff to amend complaint after demurrer sustained with leave to amend, the court in a footnote stated (p.376): “It appears that defendant’s demurrer to the complaint was sustained with leave to amend, but that defendant elected to stand on the pleadings.

In such a case, although the court may reconsider the demurrer, the defendant is entitled to have a dismissal entered on motion in the absence of counsel for plaintiff and without notice to him. (Saddlemire v. Stockton Savings etc. Soc., 144 Cal.650, 655-656 ; Berri v.

Superior Court, 43 Cal.2d 856, 860,)” 3. MOTION UNDER SECTION 473 IN TIME. As the clerk had no authority to enter the default, such entry was void and could be set aside at any time, so we are not concerned with the running of time from that event. The court’s judgment was filed on December 1, 1961. Plaintiffs filed their motion to vacate the judgment on March 19, 1962.

Section 473 provides that a motion under that section must be made within six months. Therefore plaintiffs’ motion was within time.4. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION. It has been stated so often in regard to proceedings under section 473 as hardly to require citation of authorities, that that section is remedial and should be liberally construed and applied so that one who has a meritorious case should be given an opportunity to present it, and that “Unless the order of the trial court, and the record, indicate a clear abuse of discretion, reviewing courts will not interfere.” (Bonfilio v.

  1. Ganger (1943) 60 Cal.
  2. App.2d 405, 410 ; see 3 Witkin, Cal.
  3. Procedure, p.2098.) In their motion to set aside the default and judgment, plaintiffs, in addition to claiming that both were void, asked relief under section 473 for surprise, excusable neglect and mistake.
  4. The basis of this claim as set forth in the declaration of plaintiffs’ attorneys is (1) their assumption in good faith (mistaken though it was) that in the appeal from the judgment in favor of Ryan the rulings of the trial court on various special demurrers and motions to strike were included and therefore the complaint need not be amended until after the determination of the appeal; (2) that it is the customary and recognized practice among members of the bar in San Francisco and adjacent counties known to defendants’ attorneys that before taking a default counsel will notify opposing counsel of their intention to take default and give him a reasonable time to take appropriate action; that prior to taking the default defendants’ attorneys had been most careful to give plaintiffs’ attorneys notice of all proceedings, but did not notify them of the intention to take default; (3) that four months after the default was taken defendants filed their brief on the appeal without informing plaintiffs and the court that the appeal was actually moot because of the default; and (4) that plaintiffs’ attorneys believed that the action in the superior court and that in the appellate court were interdependent in that the cause of action against defendant Sassell is for conspiracy to defraud in concert with defendant Ryan, and because the cause of action against Capital Company is dependent upon the agency relationship of defendant Ryan as president and defendant Sassell as vice president; that all of the defendants appeared jointly and counsel believed that the demurrers and motions to strike were merged in the judgment from which the appeal was taken and “that it would be impossible to amend the Complaint to state a cause of action for conspiracy in the face of a summary judgment in favor of one of two coconspirators.” One of defendants’ attorneys in opposition to the motion to set aside the default and judgment, stated that at the request of one of plaintiffs’ attorneys he had agreed to a 15-day extension of the time for filing the amended complaint, but that the written extension prepared by plaintiffs’ attorneys related to other matters.

When he received notice of the appeal from the judgment in favor of Ryan, he noticed for the first time the inclusion of these other matters. He then wrote plaintiffs’ attorneys extending plaintiffs’ time to amend to January 5, 1961. He called their attention to the problem of whether or not the appeal would stay further proceedings in the trial and suggested that plaintiffs’ attorneys consider this problem.

Thereafter, plaintiffs’ attorneys sought no further extensions from him, nor did they obtain any stay. Declarant knew of no custom that requires counsel to advise more than once of problems of this sort. Declarant then pointed out that although plaintiffs’ attorneys contended in their brief on appeal that the rulings of the trial court on various special demurrers and motions to strike were included in the appeal and that the actions in the superior and appellate courts were interdependent, the appellate court held otherwise.

The trial court stated in its order granting the motion to set aside default and judgment that its ruling was based upon two grounds: (1) that the clerk in entering the default acted in excess of his authority and that subsequent proceedings based upon that entry were ineffective.

  1. The court conceded that there was some doubt as to the legal soundness of the ruling on this ground.
  2. As we have hereinbefore pointed out, although the entry by the clerk of default was void, the judgment by the court of dismissal for failure to amend was valid.
  3. Hence, as to the judgment, the trial court was in error in holding that it could be set aside upon this ground.

The second ground is stated by the court: “The second ground is more persuasive, however, and can be summarized by stating that it is the opinion of this Court that the plaintiffs were in good faith in believing that the Ryan appeal stayed proceedings in this entire case and that they were under no obligation to amend their pleadings until the Ryan appeal was disposed of.

It should be understood that the Court does not hold that plaintiffs were correct in this assumption. Their belief, however, was valid enough to allow them to seek the benefits of section 473, Code of Civil Procedure, in applying for relief.” Thus, boiled down, the question before us is whether the court abused its discretion in granting relief because plaintiffs’ attorneys, acting in good faith, failed to amend in time because of their mistaken view of the law.

fn.2 “Although it is well settled that an honest mistake of law may justify relief under section 473, Code of Civil Procedure, what constitutes a mistake of law excusable under the statute is not as well settled. Because it is mainly a factual question, the cases vary considerably in the application of section 473, and there appears to be no exact test for determining the issue, but they do agree generally that the determining factor is the reasonableness of the misconception; and where the court finds that the alleged mistake of law is the result of professional incompetence based upon erroneous advice, general ignorance of the law or lack of knowledge of the rules, or unjustifiable negligence in the discovery or research of the law, laxness or indifference normally relief will be denied.” (Fidelity Fed.

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Sav. & Loan Assn.v. Long (1959) 175 Cal. App.2d 149, 154,) The court in the instant case held that plaintiffs’ mistaken belief that the Ryan appeal stayed the proceedings and that for that reason they had no obligation to amend their pleadings, was in good faith and justified relief. Plaintiffs claim to have relied, in forming their opinion, upon such cases as Bernhard v.

Bank of America (1942) 19 Cal.2d 807, 812-813, and Freeman v. Churchill (1947) 30 Cal.2d 453, 461, to the effect that a judgment in favor of an agent is a bar to an action against the principal. It is further claimed that plaintiffs thought Sayadoff v.

Warda (1954) 125 Cal. App.2d 626, to the effect that an “action for damages resulting from the acts of conspirators may be maintained against a single defendant,” (Sousa v. Capital Co., supra, 202 Cal. App.2d 221, 224) was inapplicable. The trial court evidently felt that there was reasonable ground for this belief, particularly in view of the fact that plaintiffs urged their version of the law on the appeal.

On the whole, it does not appear that the court abused its discretion in granting relief on this particular ground. To paraphrase the statement in Security Truck Line v. City of Monterey (1953) 117 Cal. App.2d 441, 445, “In the instant case we are not interested in the question as to whether the trial court could have,

  1. Relief based on the claimed mistake of law, but, since the trial court,
  2. Relief, only in whether such holding was within its discretion.” As further said in this case (p.445): “There is a somewhat tenuous line between a mistake of law and ignorance of law.
  3. The difference is probably only one of degree.

In such cases all factors involved must be considered to determine whether relief should be granted or denied. While there is a strong public policy in favor of permitting a trial of a case on its merits, the determination as to whether a particular mistake of law warrants the granting of relief reposes largely in the discretion of the trial court.

  1. Beard v. Beard, 16 Cal.2d 645,)” The facts in that case are somewhat similar to those in the case at bench.
  2. The appellate court held that the trial court did not abuse its discretion in refusing to set aside the default judgment.
  3. In so doing, however, the court did not hold that as a matter of law relief had to be denied.

It merely held that under the circumstances there was no abuse of discretion in denying it. As pointed out above, the court did not consider whether under the facts relief could have been granted by the trial court. Practically all of the cases relied upon by defendants were cases in which the trial court in the exercise of its discretion had refused to set aside the judgment because of mistake of law.

  • This fact distinguishes them from our case.
  • Among such cases are Fidelity Fed. Sav.
  • Loan Assn.v.
  • Long, supra, 175 Cal.
  • App.2d 149 ; A & S Air Conditioning v. John J. Moore Co.
  • 1960) 184 Cal.
  • App.2d 617 ; Kent v.
  • County Fire Ins. Co.
  • 1938) 27 Cal.
  • App.2d 340,
  • We see no abuse of discretion in the trial court’s action.5.

AFFIDAVIT OF MERITS AND PROPOSED AMENDED COMPLAINT. Section 473 provides in pertinent part: “Application for such relief must be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” Plaintiffs’ notice of motion to set aside default was accompanied by a “Motion for Order Continuing Time Within Which to Plead.” This was not a pleading.

  • Code Civ.
  • Proc., §§ 420, 422.) Before the motion was finally heard a verified amended complaint was filed by plaintiffs.
  • In County of Los Angeles v.
  • Lewis (1918) 179 Cal.398, 400, it was held that on a motion by the defendant under section 473 to set aside default an answer to the complaint served and filed two days prior to serving the notice of motion to set aside the default was “in substance and effect” (P.400) deemed to accompany the notice.

The court stated (P.400): “The plain object of the provision was simply to require the delinquent party seeking leave to contest on the merits, to show his good faith and readiness to at once file his answer in the event that leave is granted by producing a copy of the proposed answer for the inspection of his adversary and the court.

The provision of section 473 of the Code of Civil Procedure, here involved, like the remainder of the section, must be liberally construed with a view to substantial justice, and we are of the opinion that it must be held that, in view of the facts stated, the application for relief was ‘accompanied’ with a copy of the answer proposed to be filed.” (See Bailiff v.

Hildebrandt (1920) 47 Cal. App.564, 566,) In La Bonte & Ransom Co., Inc.v. Scellars (1928) 90 Cal. App.183, 185, in denying the defendant’s motion to set aside default the court stated that defendant did not accompany his motion “with a copy of his answer or other pleading, nor did he propose to file with his motion or at all any answer or other pleadings as required by” section 473.

  • Italics added.) This is not the situation here.
  • In Ellerhorst v.
  • Blankman (1929) 102 Cal.
  • App.133, the plaintiffs moved under section 473 for leave to amend their complaint after demurrer sustained without leave to amend.
  • In affirming a denial of the motion the reviewing court stated: “The appellants did not present with their motion a proposed amendment to the complaint, as they are required to do under section 473 of the Code of Civil Procedure, and they made no effort to show that an amendment could be made which would meet the objections to the former pleading.” (P.135; italics added.) The italicized portions of the above decisions indicate that a failure to accompany the notice of motion to set aside a default with the proposed amended pleading is not fatal, provided it is presented to the court on the hearing of the motion.

This meets the test above mentioned in County of Los Angeles v. Lewis, supra, 179 Cal. at page 400, that the party seeking relief from default “show his good faith and readiness to at once” produce “a copy of the proposed answer for the inspection of his adversary and the court.” The proposed amended complaint was not fatally defective merely because it still made Central Office Building a party plaintiff even though that party had voluntarily consented to the judgment dismissing it from the action and the appellate court had ruled that it was no longer a party.

  1. The allegations concerning Central Office Building could be treated as surplusage.
  2. As to the motion under section 473, “The absence of an affidavit of merits is not fatal if merits are shown by a verified pleading accompanying the application or already on file.” (See Daniels v.
  3. Daniels, supra, 136 Cal.

App.2d 224, 228; Waybright v. Anderson (1927) 200 Cal.374, 380,) Here the verified amended complaint on file before the motion was heard, sufficiently shows a meritorious claim against defendants. The order is affirmed. Sullivan, J., and Molinari, J., concurred.

  • FN 1. In Sousa v.
  • Capital Co.
  • 1962) 202 Cal.
  • App.2d 221, the court considered two matters: (1) The appeal of plaintiffs from the summary judgment in favor of Ryan.
  • That judgment was reversed.
  • 2) The motion by defendants Capital and Sassell to dismiss plaintiffs’ appeal as against them on the ground that no judgment or appealable order had been made as to those defendants at the time of the notice of appeal.

By the time the motion was heard, the controversy had become moot, as judgment in favor of said defendants had been rendered and had become final. That motion was granted and the appeal dismissed. FN 2. Apparently the trial court based no part of its ruling on the question of the alleged custom of the bar not to take default without notice of intention so to do.

  1. Although plaintiffs’ attorneys referred to this alleged custom, they nowhere in their declarations stated that they relied upon it or that their failure to amend was because of belief that they would be notified before default would be taken.
  2. Thus, the sole ground of the court’s action is the reliance in good faith by plaintiffs’ attorneys upon their mistaken version of the law.

It is of some significance that they argued these mistaken beliefs on their appeal from the Ryan judgment and on their premature appeal from the order sustaining demurrer. See Sousa v. Capital Co., supra, 202 Cal. App.2d 221,

How do you respond to a demurrer?

Download Article Download Article A demurrer, often called a motion to dismiss, is a motion filed by the other party claiming that your complaint does not establish a valid cause of action. Demurrers are not often filed, and are usually a waste of time, because courts will usually let you file an amended complaint in order to fix any errors you may have in your original.

To oppose a defendant’s demurrer, you can draft your own legal motion, called an “opposition to the defendant’s demurrer.” This is a legal document that you file with the court. In the document, you will argue that your complaint was not defective. You should revisit your legal research and double check that you alleged all required elements for each cause of action raised in the complaint.

If you get confused about what to write or if you have questions, then you should contact a lawyer.

  1. 1 Read the demurrer. In a demurrer, the defendant will claim that your complaint is legally deficient. Typically, the defendant will argue that you failed to sufficiently allege a cause of action by leaving out a required element.
    • Take out your complaint and read it side by side with the defendant’s demurrer. Check to see if the defendant has accurately summarized your complaint.
  2. 2 Find how long you have to respond. You should read your state’s rules of civil procedure to see how much time you have to respond to the demurrer. You can find the rules of civil procedure online by typing “your state” and “rules of civil procedure.” Advertisement
  3. 3 Revisit your legal research. Check to see that you sufficiently alleged your causes of action. For example, if you sued for negligence, then you needed to allege at least four elements: (1) the defendant owed you a duty, (2) the defendant breached that duty, (3) that breach injured you, and (4) you suffered injuries.
    • However, if you alleged all elements, then you should oppose the defendant’s demurrer. You will argue that your complaint was not legally defective.
  4. 4 Check that you filed in the correct court. In some states, a defendant can file a demurrer if you filed the complaint in the wrong court. For example, you might have filed a patent lawsuit in your state court when it should have been brought in federal court.
    • The defendant might argue that your cause of action is barred by federal law. This is called “pre-emption.” Unfortunately, you can’t learn pre-emption law on your own. In this situation, you should meet with an attorney. Ask the attorney whether or not the demurrer has merit.
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  1. 1 Ensure the court will allow an amended complaint. Most states, as well as the federal government, allow you to amend your complaint once without any questions. However, you can only take advantage of this if you amend your complaint within 21 days of serving your original on the defendant. If you are past this time period when you receive the demurrer, you will need the court’s permission (or the defendant’s) in order to amend your complaint. According to the federal rules, the court should freely allow an amended complaint if justice requires. Therefore, it should be relatively easy to get permission to file an amended complaint.
  2. 2 Draft the amended complaint. Your amended complaint will completely replace your original complaint. This means your amended complaint must contain all of the requirements necessary for any original complaint. The only differences will be your substantive changes and the title of your complaint, which will say “Amended Complaint” as opposed to “Complaint.” Your amended complaint must contain the following:
    • A caption, which will identify all the parties to the case
    • A statement of jurisdiction and venue
    • Any previous lawsuits regarding the same facts
    • A statement of your claim, which will lay out the facts necessary to prove each claim
  3. 3 File your amended complaint before any demurrer hearing. If you file your amended complaint before any hearings on the demurrer, you may be able to short circuit the entire demurrer process. By doing this, the court may find the demurrer action to be moot and deny the demurrer altogether.
    • Once you pay, the clerk of courts will stamp your amended complaint as “filed” and will return copies to you. One of the copies will be yours to keep while the other copy will be used to serve the defendant.
  4. 4 Serve the other party. The defendant will need to be made aware of your amended complaint, which is accomplished by serving them with a copy of the amended paperwork. You can complete the service in the same manner as when you served the original complaint. If you are personally serving the defendant, you must have someone over 18 years old who is not a party to the action serve the defendant. For a small fee, you can hire the sheriff or U.S. Marshal to complete service for you.
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  1. 1 Format your document. You will need to insert a caption at the top of the page. The caption contains the name of the court, the name of all parties, the case number, and probably the judge’s name. You can get this information off the defendant’s demurrer.
    • You may have to print the opposition to demurrer on pleading paper. This paper is numbered down the left-hand side. You can get this paper from a stationery store or download it from the Sacramento County Public Law Library.
  2. 2 Add an introduction. In your introduction, you briefly summarize why you are opposing the defendant’s demurrer. For example, you could say that the defendant has misquoted the law and misread your complaint.
    • You could write: “Defendant contends that Plaintiff has not pled and cannot allege sufficient facts for any cause of action. To support its argument, Defendant misstates the law and omits allegations from the complaint. Accordingly, Defendant’s Demurrer is without merit.”
  3. 3 State the standard of review. Below your introduction, insert the word “Argument” in bold, all caps. Make sure it is centered between the left- and right-hand margins. Underneath the heading, you should briefly explain how a court is to review a demurrer.
    • In California, for example, you could write, “A court is to assume all facts pled in the complaint are true and may not consider facts asserted in memorandum supporting demurrer.” This is a good basic principle of law. Also cite the court opinion that explains this standard of review.
  4. 4 Explain why your complaint was sufficient. Now you need to respond to the demurrer, argument for argument. If the defendant argued that you did not plead a cause of action sufficiently, then you need to explain to the judge why your pleading was sufficient. Defend each cause of action separately.
    • You should restate the elements of the legal claim. Cite to an authoritative statute or court opinion.
    • Then you should refer back to the complaint and point out how you alleged sufficient information in your complaint. Be sure to cite to the paragraphs in your complaint so that the judge can find what you are referring to.
    • If the defendant argued about facts in the demurrer—for example, by challenging your version of events—then you should state, “Defendant’s demurrer to Plaintiff’s complaint is based on a selective interpretation of facts. Consequently, Defendant highlights issues of fact that are to be decided by the trier of fact and not issues of law needed to sustain a demurrer.” You should make this argument to remind the judge that he or she must assume the facts in your complaint are true for purposes of ruling on the demurrer.
  5. 5 Add a conclusion. In your conclusion, you should restate that the complaint was sufficient and ask the judge to overrule the demurrer. Set off this section with the heading “Conclusion” in all caps, bolded.
    • For example, you could write, “For the foregoing reasons, the Complaint in this matter is detailed and complete. Defendant’s challenge to the facts should be decided on their merits rather than inappropriate technical challenges to the pleadings. Accordingly, this Court should overrule Defendant’s demurrer.”
  6. 6 Add your signature. Make sure to include a signature block with your name and address. Also add the date that you are signing your motion.
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  1. 1 File your opposition to demurrer. Make several copies of your motion. Take the copies and the original to the court clerk. Ask to file the original.
    • Also ask the clerk to stamp your copies with the date. Remember to keep one copy for your records.
  2. 2 Serve a copy on the defendant. You always have to give the other side notice that you filed a motion in the case. If the defendant has a lawyer, then you should serve the copy on the defendant’s lawyer.
    • You can generally serve a copy in the same manner that you served a copy of the complaint on the defendant. For example, you could have someone 18 or older who is not a party to the lawsuit make hand delivery.
    • You may also be able to serve notice through the mail or by sending a fax. Read your state’s rules of civil procedure to find methods acceptable in your state.
  3. 3 Prepare for the hearing. The defendant might file a reply to your opposition. You will receive it before the hearing date. You can prepare for the hearing by reading all of the papers filed. Take out your complaint, the demurrer, your opposition, and any reply from the defendant.
    • Be prepared to explain to the judge why your complaint is sufficient. Remember that the judge will assume everything in your complaint is true, so you don’t need to argue facts or present evidence at this hearing.
  4. 4 Refile the complaint. If you lose the demurrer, the court will usually dismiss your case without prejudice. This means you will be able to refile your complaint so long as you do so in accordance with the judge’s demurrer ruling. The judge’s ruling will state why your complaint was lacking and what needs to be done to fix the problem.
    • If your complaint is dismissed with prejudice, which means you cannot refile, you may have to appeal that decision to an appellate court in order to resolve the issue. The appellate court will then have to rule in your favor and reverse the trial court’s order in order to allow you to refile your complaint. An appellate court will only rule in your favor if the trial court did not act in accordance with the law. If your case was validly dismissed with prejudice (e.g., if your case was filed in violation of the statute of limitations), you will not be able to bring the case again and the appellate court will not rule in your favor.
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Who can file demurrer to evidence?

PLEASE CLICK HERE FOR THE LATEST ➔ SUPREME COURT DECISIONS SECOND DIVISION G.R. No.151931. September 23, 2003 ANAMER SALAZAR,, Petitioner, v. THE PEOPLE OF THE PHILIPPINES and J.Y. BROTHERS MARKETING CORPORATION, Respondents, D E C I S I O N CALLEJO, SR., J,: This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Criminal Procedure of the Order 1 of the Regional Trial Court, 5th Judicial Region, Legazpi City, Branch 5, 2 dated November 19, 2001, and its Order 3 dated January 14, 2002 denying the motion for reconsideration of the decision of the said court on the civil aspect thereof and to allow her to present evidence thereon.

On June 11, 1997, an Information for estafa was filed against herein petitioner Anamer D. Salazar and co-accused Nena Jaucian Timario with the Regional Trial Court of Legazpi City, docketed as Criminal Case No.7474 which reads as follows: That sometime in the month of October, 1996, in the City of Legazpi, Philippines, and within the jurisdiction of this Honorable Court, the above named-accused, conspiring and confederating with each other, with intent to defraud by means of false pretenses or fraudulent acts executed simultaneously with the commission of the fraud, did then and there wilfully, unlawfully and feloniously, on the part of accused NENA JAUCIAN TIMARIO, drew and issue PRUDENTIAL BANK, LEGASPI CITY BRANCH CHECK NO.067481, dated October 15, 1996, in the amount of P 214,000.00 in favor of J.Y.

BROTHERS MARKETING CORPORATION, represented by its Branch Manager, JERSON O. YAO, and accused ANAMER D. SALAZAR endorsed and negotiated said check as payment of 300 cavans of rice obtained from J.Y. BROTHERS MARKETING CORPORATION, knowing fully well that at that time said check was issued and endorsed, Nena Jaucian Timario did not have sufficient funds in or credit with the drawee bank to cover the amount called for therein and without informing the payee of such circumstance; that when said check was presented to the drawee bank for payment, the same was consequently dishonored and refused payment for the reason of ACCOUNT CLOSED; that despite demands, accused failed and refused and still fail and refuse to pay and/or make arrangement for the payment of the said check, to the damage and prejudice of said J.Y.

  1. BROTHERS MARKETING CORPORATION.
  2. CONTRARY TO LAW.4 cräläwvirtualibräry Upon arraignment, the petitioner, assisted by counsel, entered a plea of not guilty.
  3. Trial thereafter ensued.
  4. The Evidence of the Prosecution On October 15, 1996, petitioner Anamer Salazar purchased 300 cavans of rice from J.Y.
  5. Brothers Marketing Corporation, through Mr.

Jerson Yao. As payment for these cavans of rice, the petitioner gave the private complainant Check No.067481 drawn against the Prudential Bank, Legazpi City Branch, dated October 15, 1996, by one Nena Jaucian Timario in the amount of P 214,000. Jerson Yao accepted the check upon the petitioners assurance that it was a good check.

The cavans of rice were picked up the next day by the petitioner. Upon presentment, the check was dishonored because it was drawn under a closed account (Account Closed). The petitioner was informed of such dishonor. She replaced the Prudential Bank check with Check No.365704 drawn against the Solid Bank, Legazpi Branch, which, however, was returned with the word DAUD (Drawn Against Uncollected Deposit).

After the prosecution rested its case, the petitioner filed a Demurrer to Evidence with Leave of Court 5 alleging that she could not be guilty of the crime as charged for the following reasons: (a) she was merely an indorser of the check issued by Nena Timario, and Article 315, paragraph 2(d) on estafa penalizes only the issuer of the check and not the indorser thereof; (b) there is no sufficient evidence to prove that the petitioner conspired with the issuer of the check, Nena Jaucian Timario, in order to defraud the private complainant; (c) after the first check was dishonored, the petitioner replaced it with a second one.

The first transaction had therefore been effectively novated by the issuance of the second check. Unfortunately, her personal check was dishonored not for insufficiency of funds, but for DAUD, which in banking parlance means drawn against uncollected deposit. According to the petitioner, this means that the account had sufficient funds but was still restricted because the deposit, usually a check, had not yet been cleared.

The prosecution filed its comment/opposition to the petitioners demurrer to evidence. On November 19, 2001, the trial court rendered judgment acquitting the petitioner of the crime charged but ordering her to remit to the private complainant the amount of the check as payment for her purchase.

  1. The trial court ruled that the evidence for the prosecution did not establish the existence of conspiracy beyond reasonable doubt between the petitioner and the issuer of the check, her co-accused Nena Jaucian Timario, for the purpose of defrauding the private complainant.
  2. In fact, the private complainant, Jerson Yao, admitted that he had never met Nena Jaucian Timario who remained at large.

As a mere indorser of the check, the petitioners breach of the warranty that the check was a good one is not synonymous with the fraudulent act of falsely pretending to possess credit under Article 315(2)(d). The decretal portion of the trial courts judgment reads as follows: WHEREFORE, premises considered, the accused Anamer D.

  1. Salazar is hereby ACQUITTED of the crime charged but is hereby held liable for the value of the 300 bags of rice.
  2. Accused Anamer D.
  3. Salazar is therefore ordered to pay J.Y.
  4. Brothers Marketing Corporation the sum of P 214,000.00.
  5. Costs against the accused.6 cräläwvirtualibräry Within the reglementary period therefor, the petitioner filed a motion for reconsideration on the civil aspect of the decision with a plea that he be allowed to present evidence pursuant to Rule 33 of the Rules of Court.

On January 14, 2002, the court issued an order denying the motion. In her petition at bar, the petitioner assails the orders of the trial court claiming that after her demurrer to evidence was granted by the trial court, she was denied due process as she was not given the opportunity to adduce evidence to prove that she was not civilly liable to the private respondent.

  1. The petitioner invokes the applicability of Rule 33 of the Rules of Civil Procedure in this case, contending that before being adjudged liable to the private offended party, she should have been first accorded the procedural relief granted in Rule 33.
  2. The Petition Is Meritorious According to Section 1, Rule 111 of the Revised Rules of Criminal Procedure SECTION 1.

Institution of criminal and civil actions. (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.

The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees therefor shall constitute a first lien on the judgment awarding such damages.

Where the amount of damages, other than actual, is specified in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court. Except as otherwise provided in these Rules, no filing fees shall be required for actual damages.

No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. (b) The criminal action for violation of Batas Pambansa Blg.22 shall be deemed to include the corresponding civil action.

No reservation to file such civil action separately shall be allowed. Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed.

Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment.

Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions.

  • The last paragraph of Section 2 of the said rule provides that the extinction of the penal action does not carry with it the extinction of the civil action.
  • Moreover, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist.7 cräläwvirtualibräry The criminal action has a dual purpose, namely, the punishment of the offender and indemnity to the offended party.

The dominant and primordial objective of the criminal action is the punishment of the offender. The civil action is merely incidental to and consequent to the conviction of the accused. The reason for this is that criminal actions are primarily intended to vindicate an outrage against the sovereignty of the state and to impose the appropriate penalty for the vindication of the disturbance to the social order caused by the offender.

On the other hand, the action between the private complainant and the accused is intended solely to indemnify the former.8 cräläwvirtualibräry Unless the offended party waives the civil action or reserves the right to institute it separately or institutes the civil action prior to the criminal action, there are two actions involved in a criminal case.

The first is the criminal action for the punishment of the offender. The parties are the People of the Philippines as the plaintiff and the accused. In a criminal action, the private complainant is merely a witness for the State on the criminal aspect of the action.

  • The second is the civil action arising from the delict.
  • The private complainant is the plaintiff and the accused is the defendant.
  • There is a merger of the trial of the two cases to avoid multiplicity of suits.
  • The quantum of evidence on the criminal aspect of the case is proof beyond reasonable doubt, while in the civil aspect of the action, the quantum of evidence is preponderance of evidence.9 Under Section 3, Rule 1 of the 1997 Rules of Criminal Procedure, the said rules shall govern the procedure to be observed in action, civil or criminal.

The prosecution presents its evidence not only to prove the guilt of the accused beyond reasonable doubt but also to prove the civil liability of the accused to the offended party. After the prosecution has rested its case, the accused shall adduce its evidence not only on the criminal but also on the civil aspect of the case.

  • At the conclusion of the trial, the court should render judgment not only on the criminal aspect of the case but also on the civil aspect thereof: SEC.2.
  • Contents of the judgment.
  • If the judgment is of conviction, it shall state (1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused in the offense, whether as principal, accomplice, or accessory after the fact; (3) the penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived,

In case the judgment is of acquittal, it shall state whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist.10 cräläwvirtualibräry The acquittal of the accused does not prevent a judgment against him on the civil aspect of the case where (a) the acquittal is based on reasonable doubt as only preponderance of evidence is required; (b) where the court declared that the liability of the accused is only civil; (c) where the civil liability of the accused does not arise from or is not based upon the crime of which the accused was acquitted.

  • Moreover, the civil action based on the delict is extinguished if there is a finding in the final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist or where the accused did not commit the acts or omission imputed to him.
  • If the accused is acquitted on reasonable doubt but the court renders judgment on the civil aspect of the criminal case, the prosecution cannot appeal from the judgment of acquittal as it would place the accused in double jeopardy.

However, the aggrieved party, the offended party or the accused or both may appeal from the judgment on the civil aspect of the case within the period therefor. After the prosecution has rested its case, the accused has the option either to (a) file a demurrer to evidence with or without leave of court under Section 23, Rule 119 of the Revised Rules of Criminal Procedure, or to (b) adduce his evidence unless he waives the same.

The aforecited rule reads: Sec.23. Demurrer to evidence. After the prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court.

If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives his right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.

  • The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days after the prosecution rests its case.
  • The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt.

If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt. The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before the judgment.

  1. In criminal cases, the demurrer to evidence partakes of the nature of a motion to dismiss the case for failure of the prosecution to prove his guilt beyond reasonable doubt.
  2. In a case where the accused files a demurrer to evidence without leave of court, he thereby waives his right to present evidence and submits the case for decision on the basis of the evidence of the prosecution.

On the other hand, if the accused is granted leave to file a demurrer to evidence, he has the right to adduce evidence not only on the criminal aspect but also on the civil aspect of the case if his demurrer is denied by the court. If demurrer is granted and the accused is acquitted by the court, the accused has the right to adduce evidence on the civil aspect of the case unless the court also declares that the act or omission from which the civil liability may arise did not exist.

If the trial court issues an order or renders judgment not only granting the demurrer to evidence of the accused and acquitting him but also on the civil liability of the accused to the private offended party, said judgment on the civil aspect of the case would be a nullity for the reason that the constitutional right of the accused to due process is thereby violated.

As we held in Alonte v. Savellano, Jr. : 11 cräläwvirtualibräry Section 14, paragraphs (1) and (2), of Article III, of the Constitution provides the fundamentals. (1) No person shall be held to answer for a criminal offense without due process of law. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf.

  • However, after arraignment, trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustifiable.
  • Jurisprudence acknowledges that due process in criminal proceedings, in particular, require (a) that the court or tribunal trying the case is properly clothed with judicial power to hear and determine the matter before it; (b) that jurisdiction is lawfully acquired by it over the person of the accused; (c) that the accused is given an opportunity to be heard; and (d) that judgment is rendered only upon lawful hearing.

The above constitutional and jurisprudentially postulates, by now elementary and deeply imbedded in our own criminal justice system, are mandatory and indispensable. The principles find universal acceptance and are tersely expressed in the oft-quoted statement that procedural due process cannot possibly be met without a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial.12 cräläwvirtualibräry This is so because when the accused files a demurrer to evidence, the accused has not yet adduced evidence both on the criminal and civil aspects of the case.

  1. The only evidence on record is the evidence for the prosecution.
  2. What the trial court should do is to issue an order or partial judgment granting the demurrer to evidence and acquitting the accused; and set the case for continuation of trial for the petitioner to adduce evidence on the civil aspect of the case, and for the private complainant to adduce evidence by way of rebuttal after which the parties may adduce their sur-rebuttal evidence as provided for in Section 11, Rule 119 of the Revised Rules of Criminal Procedure: Sec.11.

Order of trial. The trial shall proceed in the following order: (a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. (b) The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a provisional remedy in the case.

  1. C) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue.
  2. D) Upon admission of the evidence of the parties, the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda.

(e) When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified. Thereafter, the court shall render judgment on the civil aspect of the case on the basis of the evidence of the prosecution and the accused.

  1. In this case, the petitioner was charged with estafa under Article 315, paragraph 2(d) of the Revised Penal Code.
  2. The civil action arising from the delict was impliedly instituted since there was no waiver by the private offended party of the civil liability nor a reservation of the civil action.
  3. Neither did he file a civil action before the institution of the criminal action.

The petitioner was granted leave of court to file a demurrer to evidence. The court issued an order granting the demurrer on its finding that the liability of the petitioner was not criminal but only civil. However, the court rendered judgment on the civil aspect of the case and ordered the petitioner to pay for her purchases from the private complainant even before the petitioner could adduce evidence thereon.

Patently, therefore, the petitioner was denied her right to due process. IN LIGHT OF ALL THE FOREGOING, the Petition is GRANTED. The Orders dated November 19, 2001 and January 14, 2002 are SET ASIDE AND NULLIFIED. The Regional Trial Court of Legazpi City, Branch 5, is hereby DIRECTED to set Criminal Case No.7474 for the continuation of trial for the reception of the evidence-in-chief of the petitioner on the civil aspect of the case and for the rebuttal evidence of the private complainant and the sur-rebuttal evidence of the parties if they opt to adduce any.

SO ORDERED, Bellosillo, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur. Endnotes: 1 Annex A, Rollo, pp.24-25.2 Penned by Judge Vladimir B. Brusola.3 Annex C, Rollo, p.29.4 Rollo, p.30.5 Annex E, id. at 32.6 Id, at 14.7 Sec.2, Rule 111.8 Herrera, Remedial Law, Vol.