Reply Separate Statements Are Improper in a Motion for Summary Judgment

As part of the Motion for Summary Judgment and/or Motion for Summary Adjudication filing, attorneys sometimes submit a document titled “Reply Separate Statement.”  In the Reply Separate Statement, the moving attorneys will raise objections to the evidence cited in the opposing party’s Separate Statement and also cite to additional evidence to refute the opposing party’s’s evidence. California Rule of Court 3.1113 limits a Reply Memorandum of Points & Authorities to ten pages, so the Reply Separate Statement is often used as an end-run around this page limitation.

The problem with filing a Reply Separate Statement is that no such pleading is allowed under the Code of Civil Procedure, California Rules of Court, or any other authority.  The Court of Appeal specifically castigated the San Francisco office of Littler Mendelson for filing a Reply Separate Statement in Nazir v. United Airlines, 178 Cal. App. 4th 243, 252 (2009).  In a scathing opinion, the Court of Appeal, after addressing numerous problems in the pleadings filed by Littler Mendelson, pointed out the following:  “The deficiencies carried over to the reply papers, which included a 297-page reply separate statement. There is no provision in the statute for this.”  Nazir, 252.  However, this reprimand has still not stopped Littler Mendelson or other attorneys from continuing to file this prohibited pleading.

Not known for overstatement, the Court of Appeal found this to be “a case involving what may well be the most oppressive motion ever presented to a superior court.”  Nazir, 248.  The opinion then set forth: “Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication.  Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded.  And the moving papers concluded with a request for judicial notice of 174 pages.  All told, defendants’ moving papers were 1056 pages.”  Nazir, 249.

Twice in the opinion, the Court of Appeal emphasized that a “Reply Separate Statement” is not allowed:  “Defendants’ reply included, and properly, their response to plaintiff’s additional disputed facts.  Defendants’ reply also included, not so properly, a 297-page “Reply Separate Statement” and 153 pages of “Exhibits and Evidence in Support of Defendants’ Reply.”  And the reply culminated with 324 pages of evidentiary objections, consisting of 764 specific objections, 325 of which were directed to portions of plaintiff’s declaration, many of which objections were frivolous.  In all, defendants filed 1,150 pages of reply.” Nazir, 249.  In the Nazir opinion, the Court of Appeal also observed that the 153 pages of “Exhibits and Evidence in Support of Reply” was improper because “[n]o such [new] evidence is generally allowed.  Nazir, 252.

The Supreme Court has held that an attorney is not entitled to recover hours which are excessive, redundant, or otherwise unnecessary. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).  Rule 4-200(A) of the California Rules of Professional Conduct mandates that “[a] member shall not enter into an agreement for, charge, or collect an illegal or unconscionable fee.”  It seems that a disgruntled client would have legitimate grounds to claim that it was charged an unconscionable fee if a law firm charged it for a pleading that has been specifically prohibited by the Court of Appeal.

So, as a litigant or attorney, what does one do when confronted with a “Reply Separate Statement”?  You usually are forewarned when defense counsel requests an electronic version of your client’s Response to the Moving Party’s Separate Statement.  California Rule of Court  3.1350(i)  provides that the a party must provide an electronic version of its Separate Statement within three days of the request.  However, I would argue that Rule 3.1350(i) does not mandate that a party opposing an MSJ/MSA provide an electronic version to the moving party because Rule 3.1350 doesn’t even mention or allow for, just as Nazir confirmed, a Reply Separate Statement.   So, simply refuse to provide an electronic version and cite to the Nazir case.  Also, point out that by filing a Reply Separate Statement they are intentionally evading the ten-page limit for a Memorandum of Points & Authorities.  For good measure, it doesn’t hurt to point out in your refusal letter that the attorneys are being unethical in overbilling their clients for “unnecessary” work on a prohibited pleading.

If the moving party still insists upon filing a Reply Separate Statement, file a written objection with the court citing these same authorities and objections.  Notwithstanding, out of an abundance of caution, you should still address and refute all of the points and evidence cited to in the Reply Separate Statement.  Until judges crack down on this behavior with meaningful consequences, it is still going to continue unchecked.