Timing and Procedure for Filing a Demurrer to Evidence in Philippine Civil Cases

A practical, everything-you-need guide under the 2019 Amendments to the Rules of Court (Philippine context). This is general information, not legal advice.

What a demurrer to evidence is (and isn’t)

A demurrer to evidence (Rule 33) is a motion to dismiss filed by the defending party after the plaintiff has completed the presentation of evidence, on the ground that “upon the facts and the law the plaintiff has shown no right to relief.” In short: “Even if you take the plaintiff’s evidence at face value, they still don’t win.”

It is not:

a motion attacking the pleadings (that’s judgment on the pleadings), nor
a motion asserting there is no genuine issue of material fact based on affidavits and papers from both sides (that’s summary judgment).

A demurrer tests only the sufficiency of the plaintiff’s proof, not the strength of the defense case.

Core timing rule

Earliest time: Only after the plaintiff has completed the presentation of evidence (i.e., after the plaintiff has rested).
Latest sensible time: Before the defendant begins presenting evidence. Filing later risks being deemed waived or moot.

Practical tip: Courts often mark the plaintiff “rested” in the minutes or pre-trial order updates. File once the court notes that the plaintiff has rested (typically after the last prosecution/plaintiff witness and after the court acts on the plaintiff’s formal offer of evidence), unless the court expressly invites earlier filing.

Who may file

Any defending party “against whom a claim is asserted” may file, including a defendant, a third-party defendant, or a defendant-in-counterclaim—so long as the other side bearing the burden for that claim has fully presented its evidence.

Form and contents

Treat it as a litigious written motion under Rule 15:

Caption and title: “Demurrer to Evidence (Rule 33).”
Very brief case synopsis: Nature of the claim(s) and burden of proof.
Precise ground: “Upon the facts and the law, the plaintiff has shown no right to relief.”
Targeted arguments tied to elements of the cause(s) of action:
- Identify each essential element and show where the plaintiff’s proof is missing, inadmissible, incredible, or legally insufficient.
- Address standing, cause of action, damages proof, causation, contract formation/breach, ownership/possession, quantum of evidence, etc., as applicable.
Record citations:
- Witness judicial affidavits and cross-examination transcripts.
- Exhibits as offered and admitted (or excluded).
Relief requested: Dismiss the claim(s) with prejudice; enter judgment for defendant on those claims.
Compliance: Notice of hearing (if required by the court), service, verification (optional), and supportive annexes (e.g., transcript excerpts).

Practical tip: Use a checklist of elements. Your demurrer should read like a surgical map: Element → Evidence in record → Why it fails.

Standard the court applies

The court evaluates whether the plaintiff’s evidence, by itself, establishes a prima facie right to relief.
The judge may weigh credibility to a reasonable extent (because only one side’s proof is in play) but ordinarily resolves doubts in favor of requiring a full trial unless gaps are clear and incurable.
Hearsay, unauthenticated documents, and exhibits not admitted generally do not count.

What happens after filing

Comment/Opposition from the plaintiff (litigious motion practice).
Hearing is discretionary; many courts resolve on the submissions.
Resolution:
- Grant: The court dismisses the affected claim(s) and renders judgment on the merits for the movant on those claims.
- Deny: The court denies the demurrer and sets the case for defense evidence. In civil cases, the defendant still has the right to present evidence (no need for “leave” as in criminal cases).

Strategic note: You can demur to all claims or only to specific claims/heads of damages. Partial demurrers are often efficient.

Remedies and appellate posture

Denial of a demurrer is an interlocutory order—not appealable by ordinary appeal. The usual (extraordinary) recourse is Rule 65 certiorari for grave abuse of discretion, which courts grant sparingly because it interrupts the trial.
Grant of a demurrer results in a final judgment on the merits as to the dismissed claim(s)—appealable by the losing party via ordinary appeal.

The unique risk in civil demurrers

If your demurrer is granted by the trial court but reversed on appeal, you are deemed to have waived your right to present evidence on the affected claims. The appellate court may decide the case on the existing record (i.e., only the plaintiff’s evidence and your cross-examinations). This is the key strategic hazard.

Interaction with formal offers and admissions

Under the 2019 Amendments, offering of documentary/real evidence is typically contemporaneous and oral as each witness testifies, then resolved by the court. A demurrer should rely on what is admitted and highlight what was excluded or never offered.
If some exhibits remain unresolved, ask the court to act on the offers first or argue in the alternative (even if those exhibits were admitted, the elements still fail).

Burdens and presumptions

The burden of proof remains with the plaintiff.
A demurrer succeeds if any essential element lacks competent, relevant, and material evidence meeting the preponderance standard (or the specific standard applicable—e.g., clear and convincing for certain civil fraud scenarios).
Adverse presumptions (e.g., spoliation) rarely rescue a fatally incomplete record.

Common winning angles (illustrative)

Authentication gaps: Unauthenticated private documents; missing original or secondary evidence rules not satisfied.
Hearsay: Reliance on affidavits without cross-examination; business records without proper custodian foundation.
Agency/authority: No proof of the signatory’s authority to bind a principal.
Title/ownership: Absence of certificate, chain of title, or proof of acquisitive prescription elements.
Damages proof: Liquidated vs. unliquidated claims; no competent proof of actual damages; moral/exemplary damages elements not shown.
Causation: Speculative causal links in tort or quasi-delict.
Conditions precedent: E.g., no barangay conciliation compliance when required; no prior demand where demand is an element.
Prescription/laches: Established from plaintiff’s own evidence and judicial admissions.

Strategic considerations

Pros

Ends the case (or trims issues) early if plaintiff’s proof is truly deficient.
Conserves time and costs; sharpens issues for appeal.
Creates a record-focused, law-and-elements posture.

Cons

Waiver risk upon reversal (see above).
May telegraph your defense roadmap.
If the court is inclined to “let it go to trial,” you may simply lose time.

When it’s strongest

The missing proof is legal and unfixable (e.g., essential exhibit excluded; element categorically absent).
Plaintiff’s theory fails as a matter of law even on their facts.
Documentary cases with clear authentication or best-evidence failures.

Practical drafting blueprint (outline you can adapt)

Introduction & Relief Sought “Defendant respectfully moves to dismiss the Complaint under Rule 33 for failure of proof.”
Standards Briefly state Rule 33 and the prima facie sufficiency test.
Element-by-Element Analysis
- Element 1 (e.g., existence of contract) → cite record → show gap.
- Element 2 (breach) → cite record → show gap.
- Element 3 (damages) → cite record → show gap.
Evidentiary Defects (alternative grounds)
- Inadmissibility (hearsay, lack of foundation).
- Unadmitted exhibits.
- Judicial admissions by plaintiff.
Prayer Dismiss claim(s) with prejudice; enter judgment for defendant; other just relief.
Annexes Pinpoint citations: transcript pages, exhibit rulings, orders on formal offers.

Courtroom logistics and tips

Ask the court to resolve pending offers first. Your demurrer should rest on the admitted record.
Pinpoint cites win cases. Quote transcript lines and exhibit identifiers; attach mini-bundles.
Be concise. Judges prefer clear element charts over long narratives.
Consider a partial demurrer (e.g., damages only) to reduce waiver risk while simplifying trial.

Effect of rulings (quick reference)

Scenario	Effect on case	Right to present defense evidence
Demurrer denied	Trial proceeds	Preserved (you present evidence)
Demurrer granted	Judgment for defendant on affected claims	N/A (case/claims dismissed)
Grant reversed on appeal	Appellate court may decide on existing record; defense evidence deemed waived	Waived (key risk)

Relation to criminal demurrers (for clarity)

Civil (Rule 33): No need for leave; denial does not waive defense evidence; reversal of grant = waiver.
Criminal (Rule 119): With leave required to preserve right to present evidence if denied; different double-jeopardy considerations.

FAQs

Q: Can I file a demurrer before formal offers are resolved? A: Best practice is after the court rules on offers, or argue both on admitted-only and assuming-admission bases and ask the court to resolve offers first.

Q: Can I demur to only some causes of action? A: Yes. You can target specific claims or particular heads of damages.

Q: If the demurrer is denied, do I need a motion for reconsideration? A: Not required; the order is interlocutory. Most practitioners proceed to defense evidence and reserve issues for appeal from final judgment (or, rarely, Rule 65 for grave abuse).

One-page checklist before you file

Plaintiff has rested; formal offers resolved (or flagged).
Elements chart completed; at least one essential element is fatally unsupported.
Record cites (TSN pages, exhibit rulings) compiled.
Motion complies with Rule 15 (service; if the court requires, set for hearing).
Consider partial demurrer vs. all-in.
You accept the waiver risk on appeal if granted then reversed.
Draft clear, narrow prayer and attach annexes.

Bottom line

A Rule 33 demurrer is a powerful scalpel. Time it after the plaintiff rests, build it element-by-element on the admitted record, and file it with eyes open to the unique waiver-on-reversal risk. When the plaintiff’s proof has a fatal hole, a well-crafted demurrer can end the case—cleanly and early.