A basic point about a cross-appellant's reply brief is that it must be limited to addressing cross-appellant's reply arguments. But too many times cross-appellants are tempted to use their reply brief to stray into attacking points raised in the appellant's reply brief. That's off limits, of course, and can result in the striking of the offending portions. (See Cal. Rules of Court, rule 8.216(b)(3) [In cross-appeal scenarios, “[a] party must confine a reply brief … to points raised in its appeal.”]; 1 Cal. Civil Appellate Practice (Cont.Ed.Bar 3d ed. 2012) § 8.41, p. 472 [“Respondent may submit a final reply as cross-appellant in a closing brief
confined to the issues raised by the cross-appeal.” (Emphasis added.)].) There is, of course, no such brief as a “Respondent’s Reply Brief.” (See 2 Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2012) ¶¶ 9:195, 9:197, 9:198, pp. 9-56 to 9-57 (rev. # 1, 2012).) [Sorry for the old cites, but this was what was handy from a successful motion from around 2012. Still good law, obvi!]
The most recent example/reminder of this (noted by appellate maven
Levin at Colantuono, Highsmith & Whatley) is in footnote 15 of this published opinion from 4/1
here:
We limit our discussion of Abatti's arguments to issues properly raised in his
combined brief. The District and Abatti briefed the parties' rights in connection with the
District's appeal. However, Abatti devoted much of his cross-appellant's reply brief to
the issue, including addressing the reply portion of the District's combined brief, under
the guise of "establishing the . . . water rights" to show that the breach and taking claims
have merit. We do not consider these points. (Hawran v. Hixson (2012) 209 Cal.App.4th
256, 268 [cross-appellant " 'may not use its cross-appellant's reply brief to answer points
raised in the appellant's reply brief.' "].)
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