Law and motion·fatal if missed
They marked every one of your facts disputed. Do you reply to the responses?
Not in a separate statement. California has no reply separate statement, and since January 1, 2025 the statute bars one by name, along with new evidence and any additional material fact that was not already in the moving or opposing papers. The answer goes in the reply memorandum, and you have ten pages. The trap is that a rule of court still refers to a "separate statement in opposition or reply," it has not been amended since 2016, and nobody has reconciled the two.
- Can you file a reply separate statement
- No. The statute names the document and prohibits it, so this is no longer a question of what the rules fail to authorize "The reply shall not include any new evidentiary matter, additional material facts, or separate statement submitted with the reply and not presented in the moving papers or opposing papers" CCP 437c(b)(4), as amended by Stats. 2024, ch. 99 (AB 2049), eff. Jan. 1, 2025
- What it was before 2025
- Prohibited by absence, and by one case. Nazir v. United Airlines, Inc. struck at a 297-page reply separate statement with the line "There is no provision in the statute for this" Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252
- Can you answer their additional material facts
- Yes, and you should. Nazir treated the moving party's response to the opposing party's additional disputed facts as proper even while condemning the reply separate statement around it Nazir, 178 Cal.App.4th at p. 252; additional facts are filed under rule 3.1350(f)(3)
- New evidence with the reply
- No. Barred by the same sentence, and it was a due process problem before the sentence existed CCP 437c(b)(4); San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316
- How much room you actually get
- Ten pages. The opening and opposing memoranda get 20 in a summary judgment motion. The reply gets the standard 10 rule 3.1113(d); longer memorandum by ex parte application at least 24 hours before it is due, rule 3.1113(e)
- The one authorized reply filing
- Written objections to their evidence. Filed at the same time as the reply, as their own document, numbered rule 3.1354(a), (b); objections not made at the hearing are waived, CCP 437c(b)(5)
- Do the mail and e-service extensions help
- No. Sections 1005 and 1013 do not extend anything under this section, except that 1005(c) still governs the method of service The 20-day and 11-day periods do not stretch for service method CCP 437c(b)(6). The 81-day notice period carries its own built-in extensions, CCP 437c(a)(2)
On this page
There is no reply separate statement, and the statute now says it in words
The prohibition used to be an argument from silence. It is text.
CCP 437c(b)(4) reads:
A reply to the opposition shall be served and filed by the moving party not less than 11 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise. The reply shall not include any new evidentiary matter, additional material facts, or separate statement submitted with the reply and not presented in the moving papers or opposing papers.
Three prohibitions in one sentence, and the third one names the document. Rule 3.1350 points the same way by omission: subdivision (c) lists the four documents the motion must contain, subdivision (e) lists the four the opposition must consist of, and there is no subdivision listing anything for a reply. Subdivision (h) prescribes the two-column format for "supporting and opposing separate statements" and prints a worked example of each. It does not print a third.
The good cause clause does not rescue you. Read the sentence again: good cause attaches to the 11-day deadline, not to the prohibition that follows it. A court can move when your reply is due. Nothing in the subdivision lets it enlarge what the reply may contain.
Before 2025 the answer came from one case, and it is still the one to cite
Nazir is where the practice got named and killed.
In Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, the defense filed reply papers running roughly 1,150 pages, including a 297-page reply separate statement and 153 pages of new exhibits. The First District's treatment of the first item is one sentence long: "There is no provision in the statute for this." Nazir, 178 Cal.App.4th at p. 252. The new evidence went the same way, on the authority of San Diego Watercrafts.
The case has taken no negative treatment in the sixteen years since, and the First District cited it approvingly in California-American Water Co. v. Marina Coast Water District (2022) 86 Cal.App.5th 1272. Cite the statute for the rule and Nazir for what a court does with the filing.
What AB 2049 changed, beyond the reply
Stats. 2024, ch. 99, effective January 1, 2025, moved every deadline in the motion: notice from 75 days to 81, opposition from 14 days to 20, reply from 5 days to 11. It also wrote a leave requirement into CCP 437c(a)(4) for a second motion against the same adverse party. The Legislative Counsel's Digest describes the reply change as a prohibition on "the introduction of new facts in a reply." The operative text is broader than the digest: it reaches new evidentiary matter and the separate statement itself, not only facts.
What you file instead, and the ten pages you get to do it in
The reply is a memorandum, and the page limit is the real constraint on this whole question.
Under rule 3.1113(d), a summary judgment motion buys an opening and a responding memorandum of 20 pages each. The reply gets the standard 10. So the honest answer to "do I respond to all 87 of their responses" is that you cannot, and the discipline that forces is the point. Pick the responses that carry an element. If fact 14 is the one that establishes notice and the rest are scenery, fact 14 gets a paragraph and the scenery gets nothing.
Three arguments do most of the work, and each one is made about a numbered fact rather than in the abstract:
1. The response does not controvert the fact. Rule 3.1350(f)(2) requires
the opposing party to state the nature of the dispute and describe the evidence
that supports the position that the fact is controverted, with exhibit, title,
page and line. A response that says "Disputed" and cites a declaration paragraph
saying something adjacent has not met that.
2. The dispute is real but immaterial. A fact can be genuinely contested
and still not touch any element of the cause of action or the affirmative
defense.
3. The controverting evidence is inadmissible. That argument belongs in
your objections, and the reply brief points at the objection number rather than
restating it.
A short table inside the reply memorandum, keyed to UMF numbers, is a normal way to present the first argument, and it is still a brief. What makes a filing a reply separate statement is that it is a separate document doing the job of a separate statement. Do not caption one.
When their separate statement is the thing that is defective
CCP 437c(b)(3) provides that failure to comply with the opposition separate statement requirement "may constitute a sufficient ground, in the court's discretion, for granting the motion." The reply is where that argument gets made, and the case law sets its ceiling. Whitehead v. Habig (2008) 163 Cal.App.4th 896 affirmed summary adjudication where the opposing party filed a document captioned as objections to the separate statement, with no evidence citations and no argument. Thompson v. Ioane (2017) 11 Cal.App.5th 1180 construed a statement that lodged relevance objections instead of stating "disputed" or "undisputed" as admitting the facts.
Do not overstate it in the brief. Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197 held it an abuse of discretion to grant the motion without first giving the opposing party a chance to cure, where the filing was not wholly deficient and the court and the moving party still had notice of the disputes. Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554 is the other side: no automatic do-over, and a court may refuse a continuance where the deficiency is substantive rather than formal. Argue the defect, expect a cure order, and make sure the substantive argument stands on its own.
Their additional material facts are the part you can answer directly
Nazir condemned the reply separate statement and approved the response to additional disputed facts in the same paragraph.
An opposition separate statement has two halves. The first responds to your numbered facts in the right column. The second, under rule 3.1350(f)(3), sets out the additional material facts the opposing party contends are pertinent, each followed by the evidence that establishes it. That second half is new matter aimed at you, and it is the piece Nazir singled out as fair to answer.
Answer it in the reply memorandum, by AMF number. If the opposing party has raised nine additional facts and three of them would defeat the motion if true, the reply says why the evidence behind those three does not establish them, or why they do not bear on the element. Keep it in the brief. A standalone document titled "Reply Separate Statement" is the thing the statute prohibits, whatever is inside it, and a document titled "Response to Additional Material Facts" is unlisted in rule 3.1350 and invites the same motion to strike for a benefit you already have.
Objections are the one thing you affirmatively file with the reply
The evidentiary attack has its own document, its own format and its own waiver rule.
Under rule 3.1354(a), written objections to evidence offered in opposition are served and filed at the same time as the reply papers. Subdivision (b) requires them to be filed separately from the other papers, numbered consecutively, each one identifying the document, giving the exhibit, title, page and line, quoting the material objected to, and stating the grounds. Two formats are prescribed and either is fine.
Two provisions decide what survives. CCP 437c(b)(5) provides that evidentiary objections not made at the hearing are deemed waived, so filing them in writing and then staying silent when the court takes the matter up is a way to lose them. CCP 437c(q) provides that the court need rule only on objections it deems material, and that objections it does not rule on are preserved for appellate review. So an unruled objection is safe and an unmade one is gone.
The rule of court still says "or reply," and nobody has fixed it
This is unsettled on its face, and the safe reading is the narrow one.
Rule 3.1354(b) says objections to specific evidence "must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement." Those five words, "in opposition or reply," describe a document that CCP 437c(b)(4) now prohibits by name.
The dates explain the collision without resolving it. Rule 3.1354 was last amended effective January 1, 2016. The prohibition in 437c(b)(4) arrived nine years later. A rule of court cannot survive a conflicting statute, so the statute controls, and no published decision has yet been asked the question.
The narrow reading is also the sensible one: the rule tells you where an objection number goes when a separate statement exists, and it is not a grant of authority to create one. Read it as a drafting instruction that has gone stale rather than as permission. If you are tempted to rely on those five words, the thing you are relying on is a citation your opponent will answer with a statute.
When the opposition raises something you can only answer with new evidence
There is no version of this where the declaration goes in with the reply.
San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308 held that considering evidence first offered in a reply declaration violated the opposing party's due process rights, because that party had already responded to the separate statement and had no way to know what it was required to meet. Nazir applied the same principle to 153 pages of reply exhibits. The 2025 amendment now bars the filing outright, so the exposure is both a stricken declaration and, where the court relies on it, a reversal.
What is left is unglamorous. Ask the court by ex parte application to continue the hearing and to permit supplemental papers, on notice, so the other side gets a chance to respond. Or accept that the motion stands or falls on the record you built. Note which side of the caption you are on before reaching for CCP 437c(h): that subdivision is the opposing party's remedy, triggered by affidavits showing that facts essential to justify opposition may exist but cannot be presented. It is not a moving party's route to a second bite.
The Golden Rule, and why the reply cannot repair an omission in your own separate statement
United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 states it as the "Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist." Later cases narrowed what "it" means. San Diego Watercrafts, 102 Cal.App.4th at pp. 315 to 316, and Zimmerman, Rosenfeld, Gersh & Leeds LLP v. Larson (2005) 131 Cal.App.4th 1466, 1478, both read the rule as reaching the material fact rather than the evidence, so a court retains discretion over evidence that the separate statement did not cite.
The practical consequence for a reply is narrow and unhelpful to the moving party. A fact that never appeared in your separate statement is not saved by arguing it in the reply, and the 2025 text now bars adding it there. A motion missing an element is missing it as of the day it was filed.
What breaks if you get this wrong
Two of these end the filing. One just wastes the reply.
Putting the declaration you needed into the reply papers
Barred by CCP 437c(b)(4) and a due process violation before that. San Diego Watercrafts, 102 Cal.App.4th at p. 316. By the time the tentative issues, the deadline to have filed it properly is 11 days gone and the hearing is on calendar.
Filing a document captioned as a reply separate statement
The statute names it. CCP 437c(b)(4); Nazir, 178 Cal.App.4th at p. 252. The court can disregard it, and everything you put only in that document goes with it, which is the real cost when it carried your best answer on the one fact that mattered.
Answering all 87 responses and running out of pages at 40
Rule 3.1113(d) caps the reply at 10 pages, and an over-length memorandum can be rejected or disregarded. A longer one takes an ex parte application at least 24 hours before it is due, rule 3.1113(e). Triage first and the problem does not arise.
Calendaring the reply 5 days out
It has been 11 days since January 1, 2025. CCP 437c(b)(4). And no service extension applies, CCP 437c(b)(6), so a mailed reply is late on the same date an e-served one is.
Before the reply goes out
Reply to a summary judgment opposition
- Confirm the reply date is 11 days before the hearing, counted backward, with no service extension.
- Read the opposition separate statement in two passes: the responses to your facts, then the additional material facts.
- Mark the three or four of your facts that actually carry an element, and write only about those.
- Answer the additional material facts by AMF number, in the memorandum.
- Draft the written objections as their own numbered document in a rule 3.1354(b) format, and point at objection numbers from the brief rather than reargue them.
- Check that nothing in the reply is evidence, a fact, or a separate statement that was not already in the moving or opposing papers.
- Count the pages against 10, excluding the caption, notice, declarations, exhibits, tables and proof of service.
- Calendar the hearing appearance to make the objections orally, or they are waived under 437c(b)(5).