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

Overview

A demurrer to evidence in Philippine civil procedure is a motion by the defendant asking the court to dismiss the plaintiff’s claim 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.” It is codified in Rule 33 of the Rules of Court (as amended, effective May 1, 2020). Properly used, it ends the case (or specific claims) without requiring the defendant to present evidence.

Legal Basis and Nature

Rule 33, Section 1 (Demurrer to Evidence). After the plaintiff rests, the defendant may move for dismissal if the plaintiff’s evidence fails to establish a prima facie case.
No leave of court is required (unlike criminal cases under Rule 119).
A demurrer tests the legal sufficiency of the plaintiff’s evidence, not its mere quantity. The court asks: assuming the plaintiff’s evidence to be true (and viewed most favorably to the plaintiff), is there enough to warrant relief under the law?

Timing: When to File

Only after the plaintiff has rested. The trigger is the formal resting of the plaintiff’s case (i.e., completion of testimonial and documentary evidence).
Before the defendant presents evidence. File instead of starting your own evidence. Once you begin presenting defense evidence, you effectively foreclose a demurrer to the evidence on the complaint.
Practical scheduling. Courts often set a short period (e.g., 5–15 days) after the plaintiff rests for the filing of a demurrer, but Rule 33 itself does not impose a fixed calendar-day deadline. If no period is set, file immediately upon plaintiff’s rest and request that your presentation of evidence be held in abeyance pending resolution.

Form and Content Requirements

A demurrer to evidence is a litigious written motion that should comply with the motion rules (Rule 15 as amended), including proof of service and stating with particularity the grounds relied upon. Best practice is to:

Identify the specific causes of action challenged.
Map elements-to-evidence: for each claim, list the legal elements and show which element(s) have no competent, credible, or admissible proof.
Cite adverse admissions by the plaintiff (pleadings, judicial admissions, stipulations, cross-exam answers).
Raise evidentiary defects (e.g., lack of authentication, hearsay without exception, secondary evidence without predicate, best evidence issues).
Address damages: even if liability were proven, show how actual, moral, exemplary, or attorney’s fees lack factual or legal basis.

Partial Demurrer. You may target only some claims or issues if others arguably require trial. Ask the court to dismiss specific causes of action (or heads of damages) and proceed on the remainder.

Standards of Evaluation

When resolving a demurrer, the court:

Views plaintiff’s evidence in the light most favorable to the plaintiff, drawing reasonable inferences in the plaintiff’s favor.
Does not weigh credibility like in a full decision, but it may disregard evidence that is patently inadmissible, inherently incredible, or legally insufficient to prove an element.
Grants the motion if any essential element of a claim lacks competent substantial evidence.

Rulings and Their Effects

If Denied

The order is interlocutory (not a final judgment).
Defendant retains the right to present evidence on all issues.
Usual remedy is none at this stage; the case proceeds. Only in exceptional situations (e.g., grave abuse of discretion) might a Rule 65 certiorari be considered—bearing the risk of delay and strict standards.

If Granted

The dismissal is a judgment on the merits of the plaintiff’s claim(s).
Appealable via ordinary appeal (Rule 41).
Critical waiver rule (civil cases): If the grant is reversed on appeal, the defendant is deemed to have waived the right to present evidence; the appellate court can render judgment based solely on the plaintiff’s evidence (the case is typically not remanded for defense evidence). This is the strategic risk of a demurrer.

Interplay with Counterclaims, Cross-claims, and Third-Party Claims

A demurrer attacks the plaintiff’s claim(s).
Compulsory or permissive counterclaims asserted by the defendant are not automatically dismissed by the grant of a demurrer to the complaint. The court should address their status expressly:
- If the complaint is dismissed but counterclaims remain, the court should set the case for reception of the defendant’s evidence on the counterclaims (since the defendant has not yet presented any).
- If counterclaims are purely defensive or dependent on the complaint, they may become moot.
Cross-claims and third-party complaints are similarly unaffected vis-à-vis the plaintiff’s case and should be separately disposed of.

Comparison with Related Devices

Motion to Dismiss (Rule 15/Rule 16 concepts, pre-answer): Attacks the complaint on the pleadings (jurisdictional and other threshold grounds). A demurrer comes after trial has begun and targets evidence.
Judgment on the Pleadings (Rule 34): Granted where the answer admits material allegations or is insufficient. No evidence review.
Summary Judgment (Rule 35): Granted where there is no genuine issue of material fact based on pleadings, affidavits, admissions, etc., typically before trial. Demurrer requires plaintiff to have rested at trial.

Typical Grounds (Illustrative)

Failure of proof of an essential element (e.g., ownership in a recovery of possession; breach in a damages suit; negligence and causation in a tort claim).
Inadmissible or incompetent evidence is the only proof offered on an element (e.g., unauthenticated private document to prove its contents; hearsay without exception).
Judicial admissions or stipulations negate an element.
Legal bar apparent from the evidence (e.g., claim is extinguished by payment or prescription admitted by plaintiff’s own proof).

Procedure: Step-by-Step

Plaintiff rests.
Oral leave to file (optional, but prudent). Ask the court to allow filing within a short period and to hold defense presentation in abeyance.
File the written demurrer. Comply with motion requirements (service, verification if needed, citations).
Opposition and reply. As a litigious motion, expect an opposition; request resolution on the papers or brief hearing if the court desires oral argument.
Resolution.
- Denied: Court sets/continues defense evidence.
- Granted: Court renders judgment dismissing the claim(s).
Post-ruling remedies (as applicable): MR/MNT, appeal (from a grant), or proceed to full trial (from a denial).

Appellate Review and Remedies

From a grant:
- Appellant (plaintiff) may challenge the sufficiency determination. If reversed, the waiver rule applies; judgment may be rendered on the plaintiff’s evidence alone.
From a denial:
- Not independently appealable. Raise the issue on appeal from the final judgment.
- Certiorari (Rule 65) only for grave abuse of discretion and when there is no plain, speedy, and adequate remedy—used sparingly.

Strategic Considerations

Pros

Potential early termination of weak claims.
Cost and time savings if granted.
Forces the court to focus on missing elements and evidentiary defects.

Cons / Risks

If reversed on appeal, defense evidence is waived—a decisive downside.
May educate the opponent on gaps to cure (reopening is rare but courts may allow rebuttal or recall witnesses for good cause before judgment).
If the plaintiff’s case is thin but not fatally so, you may be better served presenting brief defense evidence and seeking a judgment on the merits without risking waiver.

When to File

When an element is utterly unproven by competent evidence (not merely weak).
When defects are incurable (e.g., fatal authentication issues, admissions destroying an element).
When the relief sought is barred as a matter of law on the plaintiff’s own proof.

Special Contexts and Cautions

Special Civil Actions / Special Proceedings. Rule 33 applies mutatis mutandis where a party completes evidence and the opposing party claims no right to relief is shown. Always align with the special rule’s structure (e.g., probate, land registration), as some proceedings have unique proof burdens.
Small Claims / Summary Procedure. Procedural rules restrict many motions. Availability or practicality of a demurrer may be limited by those regimes’ prohibited pleadings lists and streamlined evidentiary rules. Check the governing issuance before filing.
Multiple Defendants. One defendant can demur even if co-defendants prefer to proceed. Tailor the motion to claims against the moving defendant.
Equitable relief and injunctions. Where urgent interim relief is sought, courts may be reluctant to terminate the action at mid-trial if the equities require fuller ventilation; a partial demurrer (on damages or specific claims) may be wiser.

Practical Checklist for Counsel

Has the plaintiff formally rested?
List every element of each cause of action; tick off what is (not) proven.
Cull inadmissible evidence (authentication, hearsay, best evidence, secondary evidence predicates).
Capture admissions (pleadings, pre-trial, cross-examination).
Prepare a clean elements-to-proof table for the court.
Address damages separately; many cases fail on proof of actual damages.
Plan for counterclaims: ask the court to set evidence on surviving counterclaims if the complaint is dismissed.
Weigh the waiver risk on appeal before filing.
Comply with motion rules (service, timelines, required attachments).
Propose a form of judgment (full or partial dismissal; costs).

Model Structure (Template) — Demurrer to Evidence

Title/Caption DEMURRER TO EVIDENCE

Prefatory Statement. Defendant, by counsel, and after the plaintiff has rested, respectfully moves for dismissal under Rule 33 because, upon the facts and the law, the plaintiff has shown no right to relief.

I. Antecedent Facts and Proceedings. (Brief timeline; plaintiff rested on [date].)

II. Governing Standard (Rule 33). (Quote or paraphrase; no leave required; test is legal sufficiency of plaintiff’s evidence.)

III. Elements-to-Evidence Analysis. A. Cause of Action 1 (e.g., Breach of Contract). 1. Existence of a valid contract — [cite if any proof; if none, say so]. 2. Defendant’s breach — [show absence or inadmissibility]. 3. Causation and damages — [show lack or incompetence of proof; e.g., unauthenticated receipts]. (Repeat per cause of action/damages head.)

IV. Evidentiary Defects. (Authentication failures, hearsay, best evidence, lack of foundation, self-serving affidavits without cross, etc.)

V. Relief/Damages Not Proven as a Matter of Law. (Actual, moral, exemplary, attorney’s fees standards; lack of factual basis.)

VI. Prayer.

Grant the demurrer and dismiss the complaint (or specified claims) with costs;

Set reception of evidence on defendant’s counterclaims, if any; and

Other just relief.

Notice of Hearing / Compliance with Rule 15. Service and Proof of Service. Verification (if required by local practice/court order). Signature block of counsel; roll, IBP, MCLE, PTR, email, address.

Common Pitfalls (and How to Avoid Them)

Filing before plaintiff rests → premature; likely denial.
Treating the demurrer as a fact-weighing brief → focus instead on missing elements and legal insufficiency.
Ignoring admissibility → courts can disregard incompetent proof; itemize why it cannot be considered.
Over-relying on technicalities when the court could allow curative measures (e.g., recalling a witness). Aim for incurable gaps.
Forgetting the waiver consequence on appeal → build a record showing total failure of proof on an essential element.

Bottom Line

A demurrer to evidence under Rule 33 is a precise, high-leverage tool: file it only after the plaintiff rests; aim it at essential, incurably missing elements; comply with motion practice; and never lose sight of the waiver rule if a grant is later reversed. Used judiciously, it can terminate weak claims efficiently—without the defense ever calling a single witness.