Civil Information & Frequently Asked Questions
Civil Case Information and Frequently Asked Questions
Welcome to Frequently Asked Questions about Civil cases. On this page you will find frequently asked questions and answers for Civil law related matters.
When referred to either a Local Rule or California Rules of Court, click on the buttons below to access either:
Civil Case Information
Fresno Superior Court provides interpreting services to all trial court proceedings in criminal, traffic, and juvenile delinquency proceedings. The use of State Certified and State Registered Interpreters are provided to assist the non-English party in their court proceeding. However, due to a shortage of certified/registered interpreters statewide the court may provide a provisionally qualified interpreter (non-certified, non-registered).
Furthermore, through a grant provided by the Judicial Council, Administrative Office of the Courts, we are currently providing interpreters for indigent litigants in family law cases where a Domestic Violence restraining order was sought or issued.
If you are involved in a proceeding for a criminal, traffic, juvenile, or domestic violence matter, you may ask the clerk at the counter or the clerk in the courtroom for an interpreter. If an interpreter is not available at the time of your hearing, the Court may continue your case until an interpreter can be assigned.
If you need an interpreter in any language other than Spanish, you should notify the court as soon as possible as to your language need. If you wait until your court date, you may have to wait until an interpreter can be contacted, or your matter may be continued to a future date.
For information on obtaining an interpreter, please contact the Interpreters' Office at (559) 457-4910.
If you require the services of a sign language interpreter, you may request one at any facility, for any type of hearing you may have. This includes civil hearings, small claims hearings and jury duty. For further information on this and other Access and Accommodation needs please visit the ADA page of this site.
If you are interested in becoming a Certified Interpreter, visit AOC's Becoming an Interpreter home page.
Serve all named defendants, and file proof of service with the court, within 60 days from the date the complaint is filed. (Local Rule 2.1.5.)
File an answer within 30 days after personal service. (CCP §412.20(a)(3).)
Generally must be filed at the same time the answer is filed, i.e., within 30 days after service by personal service. (CCP §428.50(a).)
Generally must be served and filed at least 16 court days before hearing, with an additional 5 days notice given if served by mail within California, an additional 10 days notice if served outside of California, an additional 20 days notice if served outside the United States, or an additional 2 calendar days notice if served by facsimile or express mail. (CCP §1005(b).)
Papers opposing a motion or replying to an opposition are to be served so that delivery is ensured to be made to the other parties no later than the close of the next business day. (CCP §1005(c).) This time frame includes motions for summary judgment/adjudication as well.
Proof of service of the moving papers must be filed no later than 5 court days before the hearing. (CRC 3.1300(c).)
Within 30 days after service, unless extended by stipulation or court order. (CCP §430.40(a); 435(b).)
Demurrer to the answer, within 10 days after service of the answer. (CCP §430.40(b).)
Statutory motion for judgment on the pleadings cannot be made after entry of a pretrial conference order or 30 days before the initial trial date, whichever is later. (CCP §438(e).)
Must be served and filed at least 75 days before hearing, extended by 5 days if served in California, 10 days if served outside California, and 20 days if served outside the United States. (CCP §437c(a).)
Opposing papers must be served and filed not less than 14 days before the hearing. (CCP §437c(b)(3).)
Reply papers must be served and filed not less than 5 days preceding the hearing. (CCP §437c(b)(4).)
Motions to compel where no response at all to interrogatories or document requests have been served may be made at any time. (CCP §§2030(k), 2031(l).)
Motions to compel further responses to interrogatories or document requests must be made within 45 days after service of the response, extended 5 days if served by mail in California; otherwise, the propounding/demanding party waives any right to compel a further response. (CCP §§2030.00 (2)(c).)
A motion to compel answers to deposition questions must be made no later than 60 days after completion of the record of the deposition. (CCP §2025.480 (b).)
Motions for sanctions under CCP §128.7 cannot be made until 51 days after service of the motion on the party said to be in violation. (CCP §128.7.)
Motions for dismissal under the two-year discretionary statute must be made at least 45 days before the hearing. Opposition is due within 15 days after service of the notice of motion. Response to the opposition is due within 15 days after service of the opposition. A reply to the response is due within 5 days after service of the response. (CRC 3.1342.)
Motions for reconsideration must be made within 10 days after service of written notice of entry of the order to be reconsidered. (CCP §1008(a).)
Defaults - FAQ
CIV - 100 Request for Entry of Default
The same form -- CIV - 100 -- is used, but the Applicant must be sure to check the box in the caption indicating whether a Clerk's Judgment or Court Judgment is being sought. Failure to check the appropriate box is a very common error. In addition, the Applicant must either check the box at ¶1 (d) or at ¶ 1 (e) indicating whether a Clerk's Judgment or Court Judgment is being sought. (See also CRC 3.1800.)
Counsel should also file a Proposed Judgment. (CRC 3.1800 (a)(6).) It may be most convenient to use Judicial Council form JUD-100. However, if a case is particularly complex, involving multiple defendants and significant amounts of overlapping and non-overlapping damages, it may be preferable for counsel to draft a Proposed Judgment tailored to that specific case, which explains precisely how damages are to be awarded and whether each of the multiple defendants is solely liable, or jointly and severally liable for each particular element of the damages award.
Yes. CRC 3.1800 sets forth a list of specific requirements, which the Applicant must satisfy when seeking entry of default judgment, on declarations. CCP 585. CCP 586. Appendix A to the Local Rules. And Civil Code sections 1717 and 1717.5.
Yes. Please submit a declaration showing in specific detail how the interest was calculated, so that the court may verify the accuracy of the calculation. (CRC 3.1800 (a)(3), 3.1802.) Please show the applicable interest rate per annum, the starting and ending dates for which interest was calculated, and the total number of days for which interest was calculated, the per diem rate of interest, and the total interest. Failure to include such calculations is a common oversight.
Yes, this Declaration is required by CCP 587 when seeking entry of DEFAULT. Absent filing of this declaration, the clerk may not enter defendant's default. The Declarant should remember to sign the declaration, enter the date, and check the appropriate box under paragraph 6. If applicable Declarant should provide the last known addresses for each of the defaulted defendants under paragraph 6 (b).
Yes, this information must be completed when seeking DEFAULT JUDGMENT. (CRC 3.1800 (a)(4), (a)(5).)
Under CCP 585 (a), Plaintiff may seek DEFAULT JUDGMENT on DECLARATIONS in an action arising upon contract or judgment for the recovery of money damages, IF the defendant(s) have NOT been served by publication.
In non-contract actions where the defendant(s) have NOT been served by publication, the court must hear evidence of Plaintiff's damages. (CCP 585 (b).)
In all actions where the service of the summons was by publication. (CCP 585 (c).)
In quiet title actions and in cases where the defendant has been served by publication and is a non-California resident. (CCP 764.010; Winter v. Rice (1986) 176 Cal.App.3d 679, 683; CCP 585 (c).
If the action is one for personal injury or wrongful death, a Statement of Damages must be PERSONALLY SERVED on the defendant BEFORE entry of default. (CCP 425.11 (c), (d)(1).) Plaintiff should file the proof of service with the court as soon as possible.
If the action seeks punitive damages under Civil Code section 3294, a Statement of Punitive Damages must be PERSONALLY SERVED on the defendant BEFORE entry of default. (CCP 425.115 (f), (g)(1).) Plaintiff should file the proof of service with the court as soon as possible.
Note that the Plaintiff may serve a single document, which combines both the Statement of Damages and the Statement of Punitive Damages. (CCP 425.11 (e); CCP 425.115 (e).)
No. As a general rule, if a co-defendant has answered and has raised defenses, which may exonerate the defaulted defendant, then default judgment is improper and may not be taken against the defaulted defendant. (Adams Manufacturing & Engineering Co. v. Coast Centerless Grinding Co. (1960) 184 Cal.App.2d 649, 655; Mirabile v. Smith (1953) 119 Cal.App.2d 685, 689.)
No. As a general rule, a defendant who defaults only admits facts well-pleaded in the complaint. If the complaint fails to state a cause of action, a default judgment is erroneous and may be set aside on appeal. (Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1153-1154.)
No. As a general rule, the court MAY NOT grant a TYPE of relief that was NOT pleaded in the complaint. (Marriage of Lippel (1990) 51 Cal.3d 1160, 1166; CCP 580.)
Similarly, as a general rule, in actions for money damages, the court MAY NOT grant damages in an AMOUNT, which was not pleaded in the complaint. (Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 493.)
Demurrers - FAQ
A demurrer is a pleading that challenges the sufficiency of the complaint, cross-complaint or answer. It raises issues of law, not fact.
Generally, a demurrer to a complaint or cross-complaint asserts that, even if all the facts alleged in the complaint or cross-complaint are true, they do not state a claim the law recognizes; that is, they do not state a claim for which the court can grant relief. A demurrer may also assert other deficiencies, for example, that the court does not have jurisdiction of the claim asserted in the complaint or cross-complaint, that the claim is already before the court in another case, that the proper parties have not been included in the case, or that the responding party cannot understand what is being alleged. (Code Civ. Proc. § 430.10.)
Generally, a demurrer to an answer asserts that, even if all the facts alleged in the answer are true, they do not constitute a defense to the claims alleged in the complaint. It may also assert that the answer cannot be understood. (Code Civ. Proc. § 430.20.)
The demurrer to a complaint or cross-complaint must be filed and served within 30 days after service of the complaint or cross-complaint. (Code Civ. Proc. §§ 430.40(a), 432.10.) In unlawful detainer actions, a demurrer to the complaint must be filed and served within 5 days after service of the complaint. (Code Civ. Proc. §§ 1167, 1170.)
A demurrer to an answer must be filed within 10 days after service of the answer. (Code Civ. Proc. §§ 430.40(b).)
The demurrer papers must be filed and served at least 16 days before the hearing, plus additional days if the papers are served by mail, overnight delivery or fax. (Code Civ. Proc. § 1005(b); Cal. Rules of Court, rule 3.1320(c).)
Demurrers must be set for hearing not more than 35 days after the filing of the demurrer, or on the first date available to the court thereafter. (Cal. Rules of Court, rule 3.1320(d).)
- Notice of hearing
- Memorandum of points and authorities
- Request for judicial notice, if the demurrer is based on matters of which the court may or must take judicial notice.
(Cal. Rules of Court, rule 3.1112(a); Code Civ. Proc. § 430.30(a); Evid. Code §§ 451, 452, 453.)
The moving party must immediately notify the court if the demurrer will not be heard on the scheduled date. (Cal. Rules of Court, rule 3.1304(b).) Plaintiff may file a first amended complaint while a demurrer to the original complaint is pending; the first amended complaint supersedes the original and renders the demurrer moot. (Code Civ. Proc. § 472.) If a first amended complaint is filed, the demurring party must notify the court and take the demurrer off calendar.
(Note: Filing a second or subsequent amended complaint without leave of court is not permitted and does not require taking off calendar the demurrer to the first or subsequent amended complaint.)
Discovery - Information & FAQ
The following consists of very general information concerning Discovery. It is not all-inclusive and is meant to be a guide only. Litigants representing themselves are still encouraged to seek the advice of counsel.
Discovery is the term used for obtaining information that will help a litigant prosecute or defend the action from other parties to the lawsuit and in some instances, from persons and entities that are not parties to the lawsuit.
By propounding (picking and choosing from among pre-formatted questions or forming your own) and serving form interrogatories, specially prepared interrogatories, requests for admissions, inspection demands and notice of depositions. Various types of form interrogatories, requests for admissions, inspection demands and notices of depositions can be obtained from the Book of Judicial Council Forms or books of discovery forms available from legal publishing companies. The rules for discovery and for each different type of discovery are set forth in the Code of Civil Procedure § 2016 et seq.
Generally, a case must be pending before discovery can begin. See CCP § 2017. Plaintiffs must obtain a court order based upon a showing of "good cause" to begin discovery during the first 10 days (20 days for a deposition) after a defendant is served with the summons or has appeared in the action (in most cases by filing an Answer.) No such "waiting period" applies to defendants. The right to discovery (seek more information) is "cut-off" 30 days before trial. A motion concerning discovery must be heard by the Court at least 15 days before trial. If the trial date is continued, this does not mean that the "cut-off" dates concerning discovery are continued as well. See CCP § 2024. Unless permission is obtained from the Court, the discovery "cut-off" dates are calculated from the initial trial date.
CCP § 2017.010 states that the information sought must be (1) "not privileged", (2) "relevant to the subject matter of the action", and (3) either admissible or "reasonably calculated to lead to the discovery of admissible evidence." There are many categories of information that are protected by statute or by the constitutional right of privacy from discovery. It is advisable to consult a treatise concerning the scope of discovery.
If you are representing yourself, severe consequence can result from a failure to respond to discovery served upon you by the other parties to the lawsuit.
If you are the plaintiff, your lawsuit can be dismissed. If you are a defendant, default can be entered. See CCP § 2023. To reiterate, it is advisable to consult with an attorney if you wish to sue or if you are sued.
In general, two types of motions to compel are commonly filed. A motion to compel initial responses is addressed to one or more of the following types of discovery: form interrogatories, specially drafted interrogatories, inspection demands (not "requests for production"), and requests for admission. The governing statutes are CCP §§ 2030.290, 2031.300 and 2033.280 respectively. (CCP § 2030 applies to both form and specially drafted interrogatories.) This type of motion is filed when a party fails to serve a verified response. Verification means that the party providing the responses (answers) states under penalty of perjury of the laws of the State of California that the responses are true and correct. See CCP § 2015.5. The qualification "verified" is used because an unverified response is tantamount to no response at all. See Appleton v. Sup. Ct. (Cook) (1988) 206 Cal.App.3d 632, 636. Responses are served on the attorney for the opposing party or the opposing party if it is representing itself. They are not filed with the Court. See CCP §§ 2030.280, 2031.290 and 2033.270. Failure to respond timely results in a waiver of objections (subject to a few exceptions not dealt with here). See CCP § 2030.290, 2031.300 and 2033.280.
A motion to compel initial responses to requests for admission is a special type of motion. Failure to respond before the hearing on the motion to compel means that all of the "matters" (facts) set forth in the requests for admission are deemed established as true. See CCP § 2033.280. For example, one party requests (asks) the other party to admit that he or she "ran the red light". No response is served. At the hearing, the Court will deem the fact as established--the party did "run the red light". Moreover, sanctions are mandatory for failure to respond to requests for admission. See Appleton v. Sup. Ct. (Cook) (1988) 206 Cal.App.3d 632, 636.
The second type of motion is a motion to compel further responses. It is also addressed to one or more of the following types of discovery: form interrogatories, specially drafted interrogatories, inspection demands (not "requests for production"), and requests for admission. The governing statutes are CCP §§ 2030.300, 2031.310 and 2033.290 respectively. This type of motion is filed when the party that propounded the questions is not satisfied with the responses received. All of the statutes governing motions to compel further responses require a "meet and confer in good faith" effort to resolve the dispute prior to filing the motion. All of the statutes also require that the motion to compel be served within 45 days of service of the unsatisfactory responses (plus five days extension of time if responses served by mail). The only exception requires a written agreement between the parties involved extending time to file the motion. The deadline has been held to be "quasi-jurisdictional"--court cannot rule on motion filed beyond 45-day limit or without written agreement extending time. See Vidal Sassoon, Inc. v. Sup.Ct. (1983) 147 Cal.App. 3d 681; Sperber v. Robinson (1994) 26 Cal.App.4th 736, 745 and Sexton v. Sup. Ct. (Mullikin Med. Ctr.) (1997) 58 Cal.App.4th 1403, 1410. See also Standon Co., Inc. v. Sup.Ct. (Kim) (1990) 225 Cal.App.3d 898, 903.
There are common mistakes regarding motions to compel initial and further responses to inspection demands. First, a motion to compel initial responses to inspection demands seeks a written response within the parameters of CCP § 2031.240. Producing documents in lieu of serving a written response is not compliance. See CCP § 2031.240 and 2031.260. Second, if in the written responses, the other party agreed to produce the documents for inspection and copying and then that party fails to produce, the remedy is a motion to compel compliance "as agreed upon". It is governed by CCP § 2031.320. It does not fall within the parameters of subsection (m). Third, any motion to compel further responses to inspection demands must show "good cause" for inspection. See CCP § 2031.310. This showing requires the moving party to set forth specific facts addressing the need to inspect the particular documents in dispute. It is insufficient to state that they need to be reviewed for context or similar reason. See Fireman's Fund Ins. Co. v. Sup. Ct. (Paine Webber Real Estate Securities) (1991) 233 Cal.App.3d 1138.
There are also various types of motions governing other means of discovery--depositions, physical examinations, mental examinations, expert witness designation, etc. These are more complicated motions and are not dealt with here.
Ex Parte - Information & FAQ
An ex parte application for a court order, being an exception to the general requirement of serving a regularly noticed motion under CCP 1005, is permitted only in limited circumstances. In every case, the application must make the necessary "affirmative factual showing" to support the particular relief being obtained on an ex parte basis [See, CRC Rule 3.1202c].
Ex parte relief is most frequently sought in situations where there is a pressing need for immediate relief such that waiting to hear the matter on regularly noticed motion would cause prejudice or harm. However, to obtain ex parte relief on this basis, the party must make an affirmative showing to justify the departure from the standard noticed motion procedure set forth at CCP 1005. An example of this type of ex parte request is an application for an order shortening time to serve notice of an urgently needed motion. An application for an order shortening time must be supported by a declaration that makes an adequate showing of "good cause" for such relief. [CRC Rule 3.1300(b)]. Another example of this sort is an application for an ex parte writ of attachment, temporary restraining order or other provisional remedy needed on an urgent basis. Whenever provisional remedies are sought, the application must show full compliance with all requirements of the applicable statute or other law authorizing such provisional relief on an ex parte basis.
Of course, ex parte relief may be sought in many other circumstances, and only the most common situations have been enumerated here. Other examples of when ex parte relief may be appropriate include (but are not limited to) certain preliminary matters in which no adverse party is affected by the relief (e.g., applications to appoint a guardian ad litem or for service by publication), and where applicable law specifically permits the relief to be obtained on an ex parte basis (e.g., CRC Rule 3.1320(h) [request for dismissal for failure to amend after demurrer sustained]).
Parties making ex parte applications shall obtain a date and time for the hearing of the application from the Clerk (Civil Calendar Division). The court requests that the party seeking an ex parte order submit the application and all supporting papers and fees to the Clerk (in Room 401 at main courthouse) for filing not later than 9:00 on the date of the hearing. (See, Fresno County Superior Court, Local Rule 2.7).
Parties seeking ex parte relief must comply with all statutes, rules and case law applicable to the specific relief being sought. For example, if a provisional remedy such as a temporary restraining order, writ of attachment, etc., is sought, the party must show full compliance with the particular statutes and other laws applicable to such provisional remedy. In addition, Rule 3.1200 to 3.1207 of the California Rules of Court sets forth a number of mandatory rules relating to all ex parte applications. Applications for ex parte orders failing to comply with Rule 3.1200 to 3.1207 will be rejected. Here are a few of the essential requirements of Rule 3.1200 to 3.1207 which parties often fail to comply with:
- Time of Notice. A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice. (CRC Rule 3.1203). If the party believes that notice to the opposing party should not be required, the reasons must be clearly specified. (CRC Rule 3.1204(b)(3)).
- Contents of Notice. When notice of an ex parte application is given, the person giving notice must state with specificity the nature of the relief to be requested and the date, time, and place for the presentation of the application, and must attempt to determine whether the opposing party will appear to oppose the application. (CRC Rule 31204(a)).
- Contents of Declaration. An ex parte application for an order must be accompanied by a declaration showing that the notice requirements under Rule 312 et seq. have been fully complied with. (CRC Rule 3.1201, 3.1203 and 3.1204). The declaration regarding notice must include the following: (1) the notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected; or (2) why notice should not be required; or (3) if notice was provided later than 10:00 a.m. the court day before the ex parte appearance, the exceptional circumstances that justify the shorter notice. (CRC Rule 3.1203(a)).
- Affirmative Factual Showing Required. An application must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte. (CRC Rule 3.1202(c)).
- Service of Papers. Parties appearing at the ex parte hearing must serve the ex parte application or any written opposition on all other appearing parties at the first reasonable opportunity. Absent exceptional circumstances, no hearing may be conducted unless such service has been made. (CRC Rule 3.1206).
When a party applies to the court for an ex parte order to shorten the time for filing and service of notice of motion (See, CCP 1005), the request must be adequately supported by a declaration showing "good cause" to justify the relief. (CRC Rule 3.1300(b)). Failure to show "good cause" is one of the most frequent grounds for denial of such ex parte applications.
Summary Judgment Motions - Information & FAQ
Motions for summary judgment/adjudication may be served at any time after 60 days have elapsed since the general appearance of the party against whom the motion is directed. (CCP § 437c(a).) Also, the motion must be served at least 75 days before the hearing date, increased by 5 days if service is by mail if the address is within California, 10 days if the address is outside California but within the United States, and 20 days if the address is outside the United States. (Ibid.) The court does not have jurisdiction to hear motions that are not served in a timely manner.
Any opposition must be served and filed at least 14 days before the hearing date, unless the court for good cause orders otherwise. (CCP § 437c(b)(2).
The reply must be served and filed at least 5 days before the hearing date, unless the court for good cause orders otherwise. (CCP § 437c(b)(4).)
No. The court does not have the authority to shorten the time for notice of a summary judgment motion. (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118.)
No. A joinder to summary judgment motion that does not contain its own notice of motion and separate statement of undisputed facts does not constitute a valid summary judgment motion, and the court cannot grant summary judgment based upon such a joinder. (Village Nurseries, L.P. v. Greenbaum (2002) 101 Cal.App.4th 26, 47.)
The separate statement must separately identify each cause of action, claim, issue of duty, or affirmative defense, and each supporting material fact claimed to be without dispute with respect to the cause of action, claim, issue of duty, or affirmative defense. (CRC 3.1350.) The statement must be in a two-column format, with the undisputed material facts in numerical sequence in the first column and the evidence that establishes those undisputed facts in the second column. (Ibid.) Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers. (Ibid.)
The opposing separate statement must set out verbatim on the left side of the page the facts claimed by the moving party to be undisputed. (CRC 3.1350(f).) Below the asserted undisputed facts, the statement must set forth the evidence said to establish that fact, complete with the moving party's references to exhibits. (Ibid.) On the right side of the page, directly opposite the recitation of the moving party's statement of material facts and supporting evidence, the response must unequivocally state whether that fact is "disputed" or "undisputed". (Ibid.) If the opposing party contends there is a dispute, the party must state on the right side of the page, directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. (Ibid.) That evidence must be supported by citation to exhibit, title, page, and line numbers in the evidence submitted. (Ibid.)
No. The notice of motion must specifically request that the moving party seeks summary adjudication in the alternative to summary judgment in order for the court to grant summary adjudication of individual claims, causes of action, or issues. (Homestead Savings v. Superior Court (Dividend Development Corp.) (1986) 179 Cal.App.3d 494, 498.) Otherwise, if there is a single triable issue as to any material fact, the court must deny the entire motion for summary judgment. (Ibid.)
The points and authorities in support of or in opposition to a motion for summary judgment/adjudication must be no more than 20 pages long, unless the moving party obtains leave of court. (CRC 3.1113(d).) The 20-page limit does not include exhibits, declarations, attachments, the table of contents, the table of authorities, or the proof of service. (Ibid.) The moving party may apply to the court ex parte to file a longer memorandum. (CRC 3.1113(e).) However, the party must file the application at least 24 hours before the brief is due, it must give the other parties written notice, and the application must state reasons for the additional pages. (Ibid.)
Normally, an attorney's declaration is only sufficient if the facts stated are matters of which the attorney would be presumed to have personal knowledge, in other words, matters occurring during the course of the lawsuit. Otherwise, the declaration is generally inadmissible for lack of personal knowledge. (Maltby v. Shook (1955) 131 Cal.App.2d 349, 351-352.)
Generally speaking, no. New evidence may accompany the reply only in "the exceptional case." (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) If the moving party submits new evidence with the reply, the opposing party is entitled to notice and an opportunity to respond to the new material. (Ibid.)