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RIANO PRE-BAR LECTURE 2018

Civil Procedure

Civil Procedure, normally 60% of the Bar Exams in Remedial Law.

Of course, that will include Provisional Remedies and Special Civil Actions.

Let me just ask you questions. As I ask you questions, try to check If you know the answers to this.

Bar 2006. Distinguish the substantive law from remedial law. That’s Bar 2006. Do you have it in your
mind? That’s a very basic question. A very fundamental question. I don’t even have to answer that. I feel
embarrassed answering a question like that. Do you have it in your mind? Can there be remedial law
without substantive law?

Of course the answer is NO. Ang ni-r-remedial mo is substantive law. Substantive law creates rights. It
creates obligations. But how are those rights enforced? How are those obligations enforced? How are
those rights protected? You go to remedial law.

In other words, mga kapatid ko sa pananampalataya, ang ni-r-remedial law natin ay substantive law. So
remember this concept without memorizing. Substantive law creates rights. It defines rights. It creates
obligations. It defines obligations. But the enforcement of those obligations are not done by
substantive law. They’re done by remedial law.

Very simple answer. Without memorizing and without being very technical about that. Now, if you want
to save time, as your lecturer talks, you’ve got to remember that until the end of November. That’s a
basic technique. If you cannot remember that, you better write. Bar topnotchers always write. And most
of them are my students in bar review. And most of them were my students in law school.

This is not a difficult subject. This is easy. You know what made remedial law difficult when you were
students? It’s the traditional way of presenting the subject. It’s Rule 1, Rule 2, Rule 3 up to Rule 71. NO!

The Rules are terribly, annoyingly and brutally arranged. The Rules were not arranged by the Supreme
Court in accordance with how the Rules are used in actual law practice. And there’s a reason for that.
The SC simply wants to protect our profession.

Imagine if the ordinary Tom, Dick and Harry could understand how the Rules operate. Kung ang isang
nagtitinda ng mani o kaya mais sa kanto ay maintindihan nang buo ang tunay na katuturan at kawatasan
ng ating mga panghukumang alituntunin. Imagine that, when they become enmeshed with litigation,
they would not come to us. They would find their own cases in court and file their own pleadings. If the
ROC could be understood by common sense, but no, the ROC could not be understood by mere
common sense alone. It cannot be understood that way. It has a story to tell which only law students
would know, but the traditional way by which we were taught in law school did not help us understand
the secrets of remedial law. Remedial law is disarranged. I’ll give you an example.

After the filing of the complaint, what comes next?

Filing of the complaint is at the last part of Rule 1. The commencement of the action. What should come
next?

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It should be Rule 14. The clerk of court will enter the picture. But that is not how our rules are arranged.
That’s why naka-dalawang buwan ka na sa law school ng Civil Procedure, hindi moa lam na meron
palang summons na Rule 14.

The Rules are not arranged. Mas mabuti pa ang syllabus ninyo arranged according to how they’re used
in law practice, but today because of my limited time, I would re-arrange it more for us to understand
how we go on. And I’ll be talking only about priority topics, I cannot talk about the other details. We
cannot do so in 2 days. You will not even meet me in the pre-week. After lecturing to you, I’m going back
to the United States.

I was telling you that the Rules of Court are not really arranged, but you have to know some basic
questions first like remedial law, substantive law. I cannot talk about this anymore, the distinction
between a judge and the court. They could be very basic questions in the Bar…

By the way, do not give shortcuts. Many answers instead of saying Motion to Dismiss. Many wrote
“MTD.” Sometimes, we wonder ano ba itong “MTD.” We look at the problem. “O, he was referring to a
Motion to Dismiss.”

“MNT,” wow! Motion for New Trial. Meron pang “DTE,” Demurrer to Evidence, mahuhulaan mo nalang
sa context ng tanong kung anong ibig niya sabihin.

Never do that!

That merits an automatic deduction for being too lazy. Papaano ko ba sasabihin ito? You try to impress
your examiner na gusto mo talagang maging lawyer. Makikita naman sa pagsulat kung gusting-gusto mo
talagang maging lawyer. At merong mga tamad. Merong mapapansin mo mga tamad talaga.

Nag-uusap-usap akong mga Bar Examiners kung anong ginagawa nila. Pati yung mga Bar Examiners noon
dahil noon nalaman kong ako’y Bar Examiner, humingi rin ako ng advice sa mga dating Bar Examiners. At
talagang totoo yung mga ginagawa nila at narasan ko rin na kapag nakikita mo talagang very serious siya
sa pagsagot, tutulungan mo pa yan. Tutulungan mo yung tao para maging abogado. Pero yung mga nag-
b-blangko, ay hindi mo tutulungan yan. Yung no. 5 sasagutin, no. 6, i-b-blangko, no.7 sasagutin, no. 8, i-
b-blangko, maraming ganon! Hindi tinutulungan yan. Kahit konting mali yan, mamalian nang marami.
Aba’y ayaw mo maging abogado e, tutulungan kitang wag kang maging abogado.

Ganon ang mindset nang lahat ng Bar Examiners. So kahit nahihirapan ka sa sagot, pilitin mol ang
sumagot. Mahagip mo man lang ang buntot ng sagot. Hindi mo kailangang mag Bull’s Eye! Hindi uso yan.
Ang Bull’s Eye lang sa enumeration.

Pag tinanong ka halimbawa, give 2 qualifications of a state witness. Pag sinabi mong, “He must be the
least guilty.” Aba’y mamalian ka na noon. Kasi wala naming the least guilty sa Rules. Ang tinanong
Section 17 ng Rule 119. Wala namang nakalagay, “he must be the least guilty.”

“He should not be the MOST guilty.” Yun! Hindi yung least guilty. Ay talagang mali.

AT SAKA yung ganito.

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“The prosecutor filed a complaint in court.” Aba’y mali yon. Mamalian ka non. The prosecutor does not
file a COMPLAINT. The prosecutor files an INFORMATION. A complaint is filed by an offended party or a
peace officer.

See, those are simple things na mapapansin mo, ang daming mali. Mga senators lang yan nagsasabi kung
ini-interview, “Napoles cannot be the state witness because she is not the least guilty.” Senators lang
yan, who have not read the Rules.

Now, let’s tell a story because I’m losing time.

RULE 1

When you think about a Civil Action, you necessarily have to think about the filing of either a
COMPLAINT or a PETITION.

The ROC are useless and nothing without a person going to court and filing a complaint. In some special
civil actions, you call it a petition. In Special Proceedings, you call them petitions. There must be
someone who has to invoke the ROC. Now, let’s start in ordinary civil actions and I’ll try to make my
words as understandable as possible.

If I want to file a complaint, what should I have in order to file a complaint? Now, why are we talking
about a complaint? The ROC will not work without a Complaint. They will simply remain as black letters
written on a white background. Almost lifeless. I’ll call them dormant without the filing of the
Complaint.

But what should I have so I could file a complaint? You know in remedial law terms, our remedial law
forefathers… By the way, our remedial law forefathers are not Filipinos. Our remedial law forefathers
are Americans. Bullshit.

We’re talking about the Code of Civil Procedure of California, from which our Rules of Court were
patterned. Our Rules of Evidence were patterned from the Federal Rules of the USA. What should you
have? Let’s quote them.

We should have a Right of Action before you can file a complaint.

Well, what is a right of action?

A right of action simply means the right to go to court and file a case in court.

That’s a remedial law term, right of action, but what do you mean, what should you have in order to
have that right to go to court and file a complaint?

The answer is very simple. It’s now found in your Rules. You should have a Cause of Action.

This is what you need in order to trigger the application of the Rules of Court. You need a Complaint. I
told you in some special civil actions, we call it a petition.

But you need in order to have the Complaint, you need a Right of Action.

You know I’m telling you this because I want you to see the road map. And you’re right of action
depends upon your cause of action.

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That’s the first lesson in Remedial Law. NOT! JURISIDICTION!

It’s useless to talk about which court am I going to when you still have not established that you have a
right to go to court. You have to establish first your right to go to court.

RULE 2

Now, look at Rule 2. What’s the cause of action? Do you have to memorize it? You don’t. You just have
to understand it.

You noticed that the definition of cause of action requires the existence of a right. And that right must
be violated. It’s the violation of the right which gives you a cause of action and because you have a cause
of action, you have a right of action. You can go to court. You’re now invoking the ROC.

Now, let me ask you. A very basic and fundamental question.

Do you need a cause of action in ALL civil actions?

The answer is NO. It’s mandatory, however, in an ordinary civil action.

The definition of a cause of action there with a right and a violation of a right is mandatory only in
ordinary civil actions.

See, you know what you missed? Because of your intention to answer difficult problems? You missed
the very simple question. Section 1 of Rule 2.

Ordinary civil actions must be based on a cause of action. It did not say ALL CIVIL ACTIONS. It only said
ordinary civil actions. And the reason for that is you can go to court sometime without a right being
violated. I’ll give you an example of a special civil action where you can go to court, file a complaint, but
your right has not been violated. But this is not an ordinary civil action but a SPECIAL civil action.

Remember in your Commercial Law, the classic example of a warehouseman? Mr. X deposited goods
with me, I’m the warehouseman. A few days after, Mr. Y comes to the warehouse and says the goods
deposited by X are my goods, they were simply highjacked from my truck. But Mr. X insists that the
goods are owned by him. And here is Mr. Y, who also equally insists, with feelings, that the goods are
owned by him.

If I give the goods to Mr. X, I run the risks of being sued by Mr. Y. If I give the goods to Mr. Y, I also run
the risks of being sued by Mr. X. There is now an issue of ownership. But I am only an ordinary mortal I
am not a court that could decide on ownership. I throw the question to the court to let the court decide
the two conflicting claims. I file a complaint in interpleader under Rule 62. But do I file the complaint
because my rights were violated? NO. I only file the complaint to ask the court to resolve two conflicting
claims which I am not competent to decide. It does not fit the definition of a cause of action.

Another example is Rule 63 on Declaratory Relief. I ask for my rights under a law, or under a deed, under
a contract, BEFORE there was a violation of a deed, before there was a violation of a contract, before
there was violation of a deed, violation of a law or statute. There was no violation. Rule 63 does not fit in
the definition of a cause of action.

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But if I borrowed 1M pesos from Dean Albano, and on the due date he demanded payment from me
and I refused to pay and instead of paying I gave him a series of dirty finger signs, then I violated his
right. I violated his right to be paid. That is an ordinary civil action. He has a cause of action against me.

OR if I got a 45-caliber pistol from my waist and shot Mr. X with intent to kill but he was not killed
because he belongs to a different breed of grass, but he was injured, he has a cause of action against
me. And there 2 causes of action there because it’s a crime. The criminal aspect cause of action is owned
by the State. The civil aspect is owned by the offended party.

A wife is not supported by the husband. The wife is so sick. The wife cannot work but the husband
refuses to give the support required by law. The wife has a cause of action against the husband. Her
right to support was violated. That’s cause of action in an ordinary civil action.

A cab driver driving recklessly, strumming a guitar while driving and singing with feelings while driving,
closing his eyes when he hits the high notes and the taxi cab rams a Meralco lamp post. Here is the
helpless passenger. All the parts of his body were broken. He has a cause of action.

You know, the Bar Exams sometimes ask you this question: What is the basis of the liability?

When you are asked the basis of liability. It is like asking you what is your cause of action.

I’ll give you an ancient Bar Exams because it really mirrors the concept we’re trying to study right now
and for all you know, it was not even asked in Remedial Law. It was asked in Commercial Law. It was
asked in 1976, when you are not yet imagined by your parents.

I was already imagined. Full-grown. And I was really taken aback by it because I said this question should
have been in Remedial Law, but it was asked in Commercial Law, in relation to Transportation Laws.

There was a ship and the ship was M/V Taurus. The master of the vessel, meaning the ship captain, had
to dock in a wharf. It sought a private wharf and made an approach to the wharf, but the approach was
done so negligently and recklessly but the private wharf was damaged. And the goods on board the ship
were thrown overboard by the impact. Very simple question. What’s the basis of the liability of the ship
owner to the owner of the wharf and to the owner of the goods? That’s cause of action. While the
answer of the examiners was also quite simple: since there was no contractual relation between the
ship owner and the owner of the wharf, and the wharf was damaged by a negligent approach, the
basis is quasi-delict or culpa aquiliana.

Then you have to explain why. How do you explain it? Use the elements of a quasi-delict in Art. 2176,
without mentioning Art. 2176 because you may write 2177 and that would be a big mistake because
2177 is not the elements of quasi-delict. It is a provision which tells you that you cannot recover
damages twice if you file it from the point of the opponent(?) in a civil action.

And what’s the basis of the cause of action or the liability of the shipowner and the owner of the
goods? Answer: contractual, based on breach of contract. The goods were not brought safely to the
destination. SEE. That’s cause of action.

O, let’s talk about that cab driver, for example, recklessly driving. The passenger was injured. Suppose
you are asked not only in Remedial Law, but in Transportation Law or in Civil Law, in Torts and Damages.
What’s the basis of the cause of action of the passenger against the driver of the taxicab which is a
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common carrier. By the way, assume that the driver is only an employee of the common carrier. What’s
the basis of the cause of action?

You should be ready to answer very simple questions like those because it’s predictable. Many would
not able to answer those easy questions. So what’s the cause of action by the passenger against the
cab driver, who is an employee of the common carrier?

There are two. The driver could be liable under a quasi-delict, negligence in driving, 2176. But that act
of the driver could also be interpreted as reckless imprudence, under 365 of the Revised Penal Code.
That’s another possible cause of action.

If you are asked, what are the possible causes of action? You’ve got to give all. But if you are asked what
is the cause of action, you can only give one. You don’t have to give everything, because it’s singular.

Is there a reckless imprudence? YES. He was reckless in driving. He was singing, closing his eyes. He was
strumming his guitar, while driving. That’s recklessness. That could be reckless imprudence, under the
RPC, resulting in physical injuries.

Now, why do you call it a cause of action even if it is a felony called criminal negligence? You’ve got to
tell the examiner that every person criminally liable is also civilly liable. Art. 100 of the RPC.

Can he be liable under breach of contract? The answer is NO. He is only an employee. It is the common
carrier that is liable under the concept of breach of contract. In our own lingo, we call him the operator.
NOT the driver. There is no contractual relationship between the passenger and the driver, because
the driver is only an employee of the common carrier.

SEE. Simple. Be careful with those questions.

Now, as I discuss this, did you get something? Did you ever think that the causes of actions in remedial
law actually came from the sources of obligation in Civil Code? Comes from law, from contracts, from
quasi-contracts, from acts and omissions punished by law, and from quasi-delicts. My brothers and
sisters in the Lord, these are actually the sources of a cause of action in Remedial Law. Simple.

But did you realize it before? No, because we studied Remedial Law in a technical manner, without
remembering that the basis of this is substantive law.

I shot an arrow into the air. It fell to Earth. I knew not where. Five minutes after, I saw Dean Albano. The
arrow embedded on his head. And he was approaching me, blood oozing from his crown unto his face.
What’s the basis of my liability?

Number 1. It could be a quasi-delict. Number 2. It could be a crime. It’s reckless imprudence.

My neighbor received the 10 thousand pesos (P10,000) supposed to be remitted to me, but because we
have the same names, the messenger messed up the delivery. Does he have an obligation to return it to
me? Do I have a cause of action against him? If he does not return it, the money misdelivered to him.
The answer is YES. It’s SOLUTIO INDEBITI. It’s a quasi-contract.

See, those are the sources of a cause of action - the sources of obligations. But here is a cause of action
which might make a refit in the Bar Exams, about independent civil actions. This is actually Criminal
Procedure already, but we’re going to talk about it in relation to Civil Procedure. There are certain
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felonies which give rise to an independent civil action, because of Art. 32, 33, 34 of the Civil Code. You
add to that, Art 2176 of the Civil Code.

Those acts give rise to independent civil actions. This topic has not been fully exploited in the Bar. Even
in the 2017 Bar Exam did not fully exploit it. There are many questions that could be asked there. The
last time it was exploited was in 2005. There was a slight use of it in 2017.

Actually, the concept of independent civil actions can be asked in 3 subjects – in Civil Law, in
Transportation Laws, Commercial Law and in Remedial Law.

Mr. X was driving his car in a very reckless manner. He hit a senior citizen who was crossing the street.
There was no intent to hit the guy, but the guy was sideswiped. The guy flew 10 meters above the
ground and fell right smack on his face. He broke his face. His face was deformed. The skull was cracked,
but he survived.

LOOK AT THIS. There is a felony. RECKLESS IMPRUDENCE RESULTING IN PHYSICAL INJURIES. It can be
serious. It can be slight. So, remember the concept. When you file the criminal action for reckless
imprudence or criminal negligence, there is also an implied institution of the civil action to be recover
the civil liability arising from the offense. Because where there is a private offended party, there is
always a civil liability. That civil liability does not arise from the Civil Code. That civil liability arises from
the Revised Penal Code, under Art. 100 – Every person criminally liable for a felony is also civilly liable.
That is the civil liability arising from the offense, flowing from the offense.

BUT during the pendency of the reckless imprudence case, which is a felony, the offended party who
survived the ordeal, may file a separate civil action based on a quasi-delict, separate from the crime
which in itself already has a civil aspect. Can you follow me?

He filed the separate action for damages based on 2176 if the Civil Code. Negligence. You know what the
accused did? The accused filed a Motion to Dismiss the second case based on LITIS PENDENTIA,
arguing that there is already a Civil Case attached to the Criminal Case then why are you filing another
Civil Case?

You’re asked in the Bar Exams, rule on the Motion to Dismiss. Now, remember the question you are
asked to RULE on the Motion to Dismiss. You’re answer must be direct. You will either deny or grant the
motion. Do not start with the law or the rule. You directly answer.

Are you going to grant the Motion to Dismiss? Are you going to deny it? You deny the Motion to
Dismiss. There is no LITIS PENDENTIA. The first civil liability is based on the offense. The second civil
liability is based on quasi-delict, an independent civil action. I’m telling you 32, 33, 34, 2176 – even if
they constitute a felony, in one side, they give rise to an independent civil action.

The most popular here in the minds of the examiner would be Art. 33. It mentions physical injuries,
fraud and defamation.

[Art.] 32 referd to violations of constitutional rights.

Ok, here is a police officer, who illegally detains a person without a valid cause. There is an illegal
detention. When the charge of illegal detention is filed, automatically, since there is a private offended
party, there is also a civil aspect of the case.
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Can the offended party file a separate civil action, aside from that civil action already attached in the
case? The answer is YES, because an illegal arrest or detention gives rise to a civil action under Art. 32.
That’s why I want you to read the independent civil actions. Even your civil law professors will tell you
that. [Arts.] 32, 33, 34, 2176.

Mr. X was charged with Oral Defamation. There is a corresponding civil action, but there can also be a
separate independent civil action.

Let’s talk about Homicide for a while. Homicide is covered under the generic name Physical Injuries. By
the way, most Filipino lawyers do not use the concept of independent civil action. When they file a
Homicide case or a Murder case, they forget to file a separate independent civil action.

Now, look at this. A Homicide case was filed. There are two aspects of the case. What are the 2 aspects
of the case?

Number 1 – The Criminal Aspect

Number 2 – The Civil Aspect

The civil aspect is the one attached to the offense.

Then, the heirs of the deceased filed a separate independent civil action for damages. The accused
was acquitted. What happens to the independent civil action?

ANSWER: It’s not affected by the acquittal. Whatever the reason for the acquittal, it will affect the
independent civil action.

What could possibly be affected is the civil action arising from the offense. Where the acquittal is
based on the judgment, where the judge says, “he was not the one who committed the offense.”
Then the civil aspect arising from the offense could have actually be extinguished.

BUT the independent civil action will not be extinguished, because it will proceed regardless of the
results in the criminal case. That’s Art. 31 of the Civil Code. That is also Sec. 3 of Rule 111.

That’s why one of the most important causes of action is independent civil actions. And because we
have no time, I’m telling you this, when you are confronted with an independent civil action used in
conjunction with the crime, there is one thing you have to remember, whatever happens to the offense,
the independent civil action is not affected. It will proceed.

Even the DEATH of the accused, will not affect the independent civil action. And the reason for that is,
IT’S CALLED INDEPENDENT. The keywords here are the provisions of Sec. 3 of Rule 111 and Art. 31 of the
Civil Code. You will have to read a lot of things. Remember those provisions.

Now, let’s try to check if you still have stock knowledge on this. We are going to check of your stock
knowledge in this par value or no par. Where did we meet that one? That’s Section 6 of your
Corporation Code.

Let us suppose we have a common carrier. Let’s call it, Victory Liner. And we have a driver. And we have
a passenger. And the driver is only an employee of the common carrier. And because of the negligence,
recklessness of the driver. The passenger was injured. And what again are the causes of action of the

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passenger against the driver? It could be quasi-delict. It could be reckless imprudence, criminal
negligence.

Suppose during the pendency of the case, the driver died of natural causes. But there was already an
independent civil action filed. Can the independent civil action go ahead and proceed despite the death
of the driver whose liability and criminal liability has have been extinguished by his death?

The answer is YES. It could proceed, regardless of what happens to the criminal aspect of the aspect. Do
not forget the concept of independent civil actions. That’s why we call them independent. They have
nothing to do with the results of a criminal case. That’s a very important concept.

There are also several causes of actions you’ve got to remember, like a cause of action arising from a
breach of contract.

A cause of action arising from a breach of contract does not require an allegation of negligence on the
defendant’s part. Negligence is not an essential element of a cause of action based on a breach of
contract. There could be a cause of action even if you do not allege the negligence of the defendant.

BUT there are two very important elements of that cause of action based on a contract.

1. You have to allege and show that there is a contract.

2. You have to allege there was a breach of that contract.

Let’s try this old Bar Exams on this.

It’s 2004. There was a guy who took a bus from Monumento-Caloocan bound for Makati. It was
described as a public carrier, although we know it as a common carrier. He did not reach his destination.
There was a collision between the bus he was riding in and a dump truck. He died and he was suddenly
called by his ancestors. He had one child and that child filed an action against the common carrier for
damages for the death of his father under a breach of contract theory. So the plaintiff, the child, was
able to prove that his father was a passenger. He was able to prove that his father did not reach his
destination safely. He rested his case and you know, when the plaintiff rests his case, sometimes the
defendant may not present his own evidence. Sometimes, the defendant may say that under the facts
and under the law, “the plaintiff actually has insufficient evidence, he is not entitled to relief.” So the
defendant filed a Demurrer to Evidence.

You remember that word, ok?

A Demurrer to Evidence is a Motion to Dismiss, but it’s not Rule 16. It’s Rule 33. It is a Motion to Dismiss,
after the plaintiff has rested his case. You know the ground for his Demurrer? He wants the dismissal of
the case because the plaintiff, the son, was not able to prove the negligence of the common carrier.
Decide on the Demurrer. That’s a very simple Bar problem.

ANSWER: The Demurrer should be denied.

That’s your first sentence. Rule on the Demurrer. “The Demurrer deserves an outright dismissal,” if you
want to be melodramatic.

What’s your next paragraph? Your next paragraph should be your legal basis.

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“It is a jurisprudential rule that an action based on breach on contract does not require allegation or
proof of negligence of the defendant. It being unnecessary, the demurrer should be denied.”

That’s enough. It’s enough for you to make the examiner suffer from an acute inferiority complex,
without giving three paragraphs. That’s what the examiner is looking for. Alam niyo hindi na kayo
pwedeng maging maarte sa pagsagot. Pwedeng kang maarte sa pagsagot kung ang i-c-check lang ay
dalawang-libong papel. E pitong-libong notebook yan in the average. Binibigyan lamang ng apat na
buwan ang examiner para check-an yan.

Mag-c-cite ka? Chinecheck yan! Mali ang citation mo ang labas mo bolero ka. See? At magagalit sayo ang
examiner. Nag-cite ka ng case na hindi familiar sa kanya, dahil hindi naman mainstream case. Ang
familiar sa examiner yung mainstream case. Yung mga landmark cases. Yung mga anik-anik na case na
nilagay mo. I-c-check yan! Kung mali ang citation mo, WALA! Kung lima yan, minus 3 ka kaagad.
Samantalang full credit yung hindi nag-cite. E kung inalis yung citation mo, 5 ka sana. E nambola ka.
Magagalit pa dahil sa inabala mo yung pag-c-check niya. I-g-google pa niya yan. O hahanapin sa kanyang
SCRA.

O anong sabi ng isang examiner? “Lintek na mga batang to. Imbes na mabilis ang pag-check ko, i-c-check
ko pa yan. You have to make adjustments. Maaaring wala pang nagsabi sa inyo niyan. Pero I’m telling
you right now from experience. Ok?

Your DEMURRER SHOULD BE DENIED. An allegation and proof of negligence is not required when it is
based on breach of contract. But when the cause of action is based on a quasi-delict, negligence is an
element. You’ve got to prove it, UNLESS negligence is presumed.

Now, in relation to Transportation Laws, where you are sued under a breach of contract, you’ve got to
make a distinction between a private carrier and a common carrier.

In a COMMON CARRIER, there are two reasons why negligence is not required.

First reason, Remedial Law reason, NEGLIGENCE IS NOT AN ELEMENT OF A BREACH OF CONTRACT.

Civil Code reason, NEGLIGENCE OF A COMMON CARRIER IS PRESUMED. 1756 of the Civil Code.
Presumed. 1735, also presumed with respect to goods. 1756, with respect to passengers.

If the defendant is a PRIVATE CARRIER, there is only one reason. NEGLIGENCE IS NOT AN ELEMENT of a
breach of contract, because there is no presumption of negligence in a private carrier situation. It only
arises in a common carrier.

Now, another cause of action you’ve got to remember is this. A cause of action based on FORCIBLE
ENTRY and a cause of action based on UNLAWFUL DETAINER.

A cause of action for UNLAWFUL DETAINER requires as a general rule, a demand to vacate. Where there
is no demand to vacate in unlawful detainer, there is a problem with your allegations. There is an
insufficiency in your cause of action.

In a FORCIBLE ENTRY case, the general rule is there is NO NEED TO DEMAND TO VACATE. And the reason
there is very simple, the possession was illegal from the beginning.

Kupalourd | Sweet Red

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------------HARMONY AND BROTHERS AND SISTERS FOREVER--------------

In FORCIBLE ENTRY, there is only one exception when a demand to vacate has to be made. When the
possession was through STEALTH. You have to demand to vacate. BECAUSE stealth is clandestine. It is
secret. It has to be discovered. From your discovery, DEMAND TO VACATE.

In UNLAWFUL DETAINER, there is no need to demand to vacate if:

1. There is a stipulation to that effect

2. If it is based on the expiration of the lease

That is for purposes of the Bar. When you go to law practice, ALWAYS DEMAND to avoid further
discussions with the judge who forgot his law.

BUT for purposes of the Bar, there is no need to demand to vacate when the ground is expiration of the
lease contract.

Do not forget those important things!

When you come to Special Civil Actions, Dean Albano will come and tell you that the possession in
FORCIBLE ENTRY was unlawful from the beginning because the possession was acquired by FISTS –
Force. Intimidation. Stealth. Threat. Strategy.

There are many causes of actions you’ve got to know. But those are the very basic things.

By the way, when there is an insufficiency in the allegations of the plaintiff, do not invoke Rule 16 by
saying Motion to Dismiss for lack of a cause of action. That’s not correct. Do not say

Kupalourd | Sweet Red

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