Checklist for Your Summary Judgment Reply Brief

Julie Brook, Esq., reprinted with permission from CEB.

July 9, 2021

You moved for summary judgment, received the opposition papers, and now it’s your turn to reply. The reply brief gives you a chance to respond to arguments raised by the opposition. Who knows? The opposition may have misconstrued legal authority, relied on inadmissible evidence, emphasized immaterial facts, or failed to follow the correct procedure. Before you start on your reply, review this checklist.

__   1. Review timing. Has the reply been calendared for 5 days before the hearing? (Code Civ. Proc., § 437c(b)(4).) Make sure the reply papers are served by a method that ensures next-day delivery. (Code Civ. Proc., § 1005(c).)

__   2. Request opposing party’s electronic version of its separate statement. If the parties agree on the form of the electronic version, the opposing party must provide it to the moving party within 3 days. (Cal. Rules of Ct., rule 3.1350(i).) Calendar the request at least 4 days before the reply is due.

__   3. Review papers for possible procedural challenges. (Note that the court will not grant summary judgment based on a procedural error by the opposing party unless it first determines that the moving party has met its initial burden of proof; given this high hurdle, it’s risky for the moving party to rely merely on procedural errors by the opposition in its reply):

__   a. Were the opposing papers timely filed 14 days before the hearing and served in a manner calculated to provide service on the next business day?

__   b. Did the opposing party submit a separate statement in the proper format?

__   c. Have you asked the court to grant your motion because the opposing party failed to filed a separate statement?

__   4. Review papers for possible evidentiary challenges, i.e., the opposing party’s evidence is inadmissible. (Note that evidentiary objections not made at the hearing are waived (Code Civ. Proc., § 437c(b)(5)), as are objections to a declarant’s (or affiant’s) competence to testify to the matters stated in a declaration (or affidavit) or by personal knowledge (Code Civ. Proc., § 437c(d)):

__   a. Are the opposing party’s declarations and affidavits based on personal knowledge?

__   b. Do the opposing party’s declarations establish that the evidence is what it is represented to be?

__   c. Do the opposing party’s declarations and affidavits contain argumentative assertions of fact, assert legal conclusions, or refer to previous discovery controversies?

__   d. Have you moved to strike any such improper matter?

__   5. Review papers for possible substantive challenges:

__   a. Did the opposing party meet its burden of production, i.e., raise any triable issues of material fact on the elements necessary for judgment in its favor?

__   b. Did the opposing party respond to the important legal authorities?

__   c. Are the opposing party’s legal authorities accurate?

The reply is your opportunity to bring these issues to the court’s attention and correct any misimpression. Use it well!

For everything you need to know about moving for summary judgment, including preparing your reply papers, turn to CEB’s California Summary Judgment.