MCLE Article and Self-Assessment Test
Subtle differences in the rules of procedure between state and federal courts in Los Angeles can trip up even experienced litigators
By Adam Treiger and Milena Kogan
Adam Treiger is an associate with the law firm of Morgan, Lewis & Bockius LLP, and Milena Kogan is an associate with the law firm of Casterline & Agajanian LLP.
California's "fast-track" rules, in place for more than five years, were launched with the belief that increased court management of cases was the prescription for the malady of court congestion. The success of these rules, and the philosopy behind them, is nowhere more evident than in Los Angeles County, where the period between the filing of a case and the parties actually going to trial has been slashed from about five years to approximately one year. Litigators in Los Angeles who, when given the option, previously chose state court over federal court because of the state court's formerly more relaxed procedural atmosphere, now find themselves litigating in state and federal court almost interchangeably.
When lawyers split their caseloads between the federal and state systems in Los Angeles, pitfalls abound for experienced and neophyte litigators alike. Even the names of the respective appellate courts are confusing: U.S. Ninth Circuit Court of Appeals; California Court of Appeal. A close comparison of pretrial civil procedure and practice in the United States District Court for the Central District of California and the Superior Court of California for the County of Los Angeles yields valuable insights.
Federal court rules require only "notice pleading," while state court rules mandate the more stringent "fact pleading." In notice pleading, the complaint must give fair notice of the pleader's claim so that opposing parties can respond-but the recitation of all specific facts constituting the claim for relief is not required. In fact pleading, by contrast, the complaint must state all of the facts constituting the cause of action in ordinary and concise language. Many attorneys regularly utilize fact pleading in both federal and state court matters, but, in theory, the federal standard is far less stringent than the California standard.
In all state court matters, a plaintiff ignorant of the names and capacities of other possible defendants may allege that there are unknown, or "Doe," defendants. If an unknown defendant is later discovered, and the complaint is amended using the Doe amendment form, the date on which the former Doe defendant is sued may relate back to the date on which the complaint was originally filed-thereby staving off statute-of-limitations defenses. In federal court, Doe defendants are permitted in federal-question cases, but they are not allowed in diversity cases.
The date by which all named defendants must be served in federal court is 120 days after the filing of the complaint. In state court, the plaintiff has only 60 days to accomplish the same task.
Although the federal rules technically allow general denials, the use of general denials is limited to situations where the defendant can deny all material allegations in the complaint, including jurisdictional allegations. If a defendant cannot in good faith make such a sweeping denial, the defendant must specifically deny, admit, or plead lack of knowledge to each allegation of the complaint. In contrast, as long as a state court complaint is not verified, a general denial of all material allegations is permitted. The federal rules do not require that an answer be verified, even if the complaint is verified. In state court, however, if the complaint is verified, the answer also must be verified.
The deadlines that must be met by defendants filing an answer or other responsive pleading differ between the two systems. In federal court, the deadline is 20 days; in state court, 30 days. If these deadlines are too short, a defendant can always seek an extension of time. The number of extra days that opposing counsel can grant without court approval differs between the federal and state courts: the federal rules allow a generous 30-day extension, while the state rules allow only 15 days.
In addition to its answer, a defendant may wish to file a pleading against the plaintiff or against third parties. In federal court, these pleadings are called "counterclaims," "cross- claims," or "impleaders." A counterclaim is any claim that the defendant has against any opposing party connected to the original suit. A cross-claim is any claim by one defendant against a codefendant arising out of the same transaction or occurrence that is the subject matter of either the original action or a counterclaim. Counterclaims and cross-claims are technically part of the answer, and thus a defendant has 20 days after service of the complaint in which to file them. In an impleader (also known as a third- party complaint), a defendant brings a third party into the action who may be liable to the defendant for all or part of the claims against the defendant. Impleaders must be filed within 10 days after the answer.
Counterclaims, cross-claims, and impleaders are terms that do not exist in state court. Instead, a defendant files a cross-complaint to assert claims for affirmative relief against the plaintiff, or against a codefendant or a third party. Claims against the plaintiff may be asserted regardless of whether the claims are related in any way to the complaint. However, claims against anyone else must relate to the subject matter or transaction alleged in the plaintiff's complaint. Cross-complaints may be filed as a matter of right before or at the same time as the answer.
Few subjects have the potential to cause more confusion than the differences between federal and state discovery rules. The federal rules allow 30 interrogatories per party without leave of court, while the state rules allow 35 specially prepared interrogatories in addition to the approved form interrogatories (which do not exist in federal court). In order to propound additional interrogatories, the federal rules require a motion or stipulation, while the state rules require only that counsel serve a declaration stating that additional interrogatories are needed and that they do not constitute harassment. In federal court, interrogatories must be numbered consecutively throughout sets, and each question must be restated above the answer in the response. There are no such requirements in state court.
In federal court, if a party fails to answer a request for admission, the fact in the request is deemed admitted, and there is no need to file a motion to have it deemed admitted. In state court, failure to answer a request for admission waives all objections but does not create an automatic admission. Also, in federal court, there is no need to verify responses to requests for admission, while in state court, verifications are required. In federal court, a party has 30 days to respond in writing to a "request for production of documents." In most circumstances, a third party has 14 days to object in writing to a document subpoena. Under state rules, a party has 20 days to respond in writing to a "demand for inspection of documents." A third party has until the date the documents are due to object in writing to a document subpoena, but if the objection is to the form of the notice, the objection must be filed three days before the documents are due. As with requests for admission, there is no need in federal court to verify written responses to requests for production of documents or subpoenas. However, in state court, verifications are required unless the response consists solely of objections.
When a party in state court seeks the production of consumer records, such as medical records, the consumer must be notified at least 10 days prior to the date for production specified in the subpoena, and the witness must be informed that the consumer has been so notified. The federal rules do not specifically provide for this procedure, although it is unclear whether it may be required in diversity cases since its purpose is the protection of the substantive constitutional rights of California residents.
In the federal system, a party has a duty to correct and-under some circumstances-to supplement written discovery responses when new information is learned. The state rules have no requirement that a party amend or correct its responses; instead, parties must serve supplemental interrogatories in order to obtain this information-even if the 35-interrogatory limit has been exhausted.
In federal court, 10 depositions are permitted without leave of court. In state court, there is no express limit on the number of depositions. Depositions may be noticed under the federal rules at any time after the complaint is filed, but a court order may be necessary if a deposition is noticed before the early meeting of counsel. Under state rules, the plaintiff must wait 20 days after service of the summons and complaint to serve a deposition notice, while the defendant may serve a deposition notice at any time after the defendant is served.
In federal court, plaintiffs must disclose who their experts at trial will be eight weeks prior to the discovery cut-off, and defendants must do the same three weeks later. Under the state rules, either party may make a written demand for the simultaneous exchange of expert information either 10 days after the trial date is initially set or 70 days before the trial date, whichever is later. Then, the exchange must be made 20 days after the demand, or 50 days prior to the initial trial date, whichever is later. The state court exchange must include:
- The name and address of the expert.
- A declaration signed by the attorney stating the expert's qualifications.
- The general substance of expected testimony.
- The expert's readiness to testify.
- The amount of the expert's fees for deposition testimony and for consulting with the retaining attorney.
Under the federal rules, expert reports are required and must be disclosed by the plaintiff eight weeks prior to the discovery cut-off date, and by the defendant five weeks prior to the discovery cut-off date. These reports-which must be prepared and signed by the expert, not the attorney-must cover:
- All opinions to be expressed.
- The bases for those opinions.
- The data or information considered in forming the opinions.
- Any exhibits the expert plans to present.
- The qualifications of the expert.
- The expert's publications within the last 10 years.
- The expert's compensation.
- The other cases in which the expert has testified as an expert.
Different rules apply in state court. There, at the time of the demand, the demanding party can request the production of all discoverable reports. In the alternative, parties can wait and request all discoverable reports, if any, when they notice the expert's deposition. Under the federal rules, the discovery cut-off date is set by the court in a scheduling order, while in state court discovery cut-off occurs automatically 30 days before trial. If discovery is needed after the cut-off date, leave of court is required in federal practice, while in state court the parties may stipulate to this relief. The federal rules require that counsel for the parties attend an early meeting under Central District Local Rule 6.0. Within 30 days after service of the answer by the first answering defendant, and thereafter as each defendant answers, counsel for the parties must meet face-to-face and exchange:
- All documents that the parties believe they will use either to prove their cases or to rebut their opponent's cases.
- A computation of any category of damages claimed by the disclosing party, as well as all documents on which this computation is based.
- Lists of percipient witnesses.
- Any insurance agreements under which coverage may exist to satisfy all or part of any judgment that might be entered in the action.
Counsel are also required to engage in settlement discussions at the early meeting. The court monitors compliance with this rule by requiring the parties to file a joint status conference report, 14 days after the early meeting, detailing the progress made at the early meeting. The report should include the parties' discovery plan, their proposed motion schedule, the prospects for settlement, and an estimate of the time required for trial.
The procedures for making and opposing motions in state and federal court differ in many ways, some seemingly trivial. But these differences can be determinative in their effect. The time for filing and serving motions differs between the two systems. In federal court, moving papers must be filed and served 21 calendar days before the hearing, opposing papers 14 calendar days before the hearing, and reply papers 7 calendar days before the hearing. In state court, moving papers must be filed and served 15 calendar days before the hearing, opposing papers 5 court days before the hearing, and reply papers 2 court days before the hearing. On motions for summary judgment, the federal court schedule is the same as for filing other moving papers, but the state court requires that moving papers for summary judgment be filed 28 calendar days before the hearing, opposition papers 14 calendar days before the hearing, and reply papers 5 calendar days before the hearing. As a result, opposing a motion for summary judgment in federal court is particularly onerous, in contrast to the state court procedure.
In federal court, a party may bring a motion for summary judgment on individual issues; in state court, summary adjudication must encompass an entire cause of action, affirmative defense, claim for damages, or issue of duty. A motion for summary judgment may be filed in federal court 20 days after the filing of the complaint, while state procedure imposes a 60-day delay after the general appearance of the party against whom the motion is directed.
The Federal Rules of Civil Procedure provide that any time period consisting of more than 10 days as specified in any federal rule, including local rules, shall mean calendar days, and any time period of 10 days or less shall mean court days (unless otherwise specified). In state court, the term "days," without any qualifier, always refers to calendar days, and court days are expressly designated.
In federal court, all legal briefs are subject to a 35-page limitation. This contrasts with state court rules: generally, moving and opposition briefs may not exceed 15 pages; but summary judgment motions and oppositions may be 20 pages long, and the limit for all reply briefs is 10 pages. As for page numbering, the federal court requires consecutive numbering of all exhibits and declarations, while the state court does not. If page limits are a problem, the rules on typefaces and fonts can sometimes help, at least in state court. In federal court, the typeface can be no smaller than 10 characters per inch ("cpi"), with no font specified except a reference to a 1970s-reminiscent "pica size." State rules allow 12 cpi and a choice of three fonts-Times, Helvetica, or Courier. This is a distinction with a difference. For example, a 15-page document written in 10 cpi Courier, when changed to 12 cpi Times, allows an extra 1,632 words, or approximately four extra pages.
Even tasks as mundane as case citation and page numeration become perilous when a lawyer practices in both court systems. In federal court, parallel cites are required for U.S. Supreme Court cases and all state cases. Under the state rules, only citations to official reporters are required. Furthermore, state rules require that all non-California cases cited in legal briefs, including federal cases, be lodged with the court along with the papers in which the cases are cited.
The federal rules seem to embody a stronger dislike for discovery motions than do the state court rules. Meet-and-confer conferences, for example, although required in both systems, must be conducted in person under the federal rules. More important, while state court discovery motions are subject to the same basic procedural requirements as other motions, the local rules in federal court embody a more rigorous process requiring a "joint stipulation" containing points and authorities drafted and approved by both sides. The federal rules do not specifically allow for service by telecopier or overnight mail, and when service is by mail, only three additional days are added to the specified response time. The state rules, in contrast, allow service by telecopier if all parties agree in writing, as well as service by overnight mail. The use of either method allows the responding party two additional days. If service is by mail, the state rules allow five additional days to respond. It seems that California is more attuned than the federal government to the workings of the U.S. Postal Service.
In federal court, the demand for a jury trial must be made early in the case-either at the end of a party's opening pleading, or 10 days after service of the last pleading directed to an issue that is triable by jury as a matter of right. In state court, the time frame for the jury demand is longer:
- If the case is set for trial by notice or stipulation, the demand must be made before the case is first set for trial.
- If the case is set for trial by court order without notice or stipulation, the demand must be made within five days after notice of the trial setting.
Jury fees are not charged to a party in federal court. In state court a party must post the first day's jury fees at least 25 days before trial, or the right to a jury trial is waived. In federal court, there are mandatory settlement procedures that are now absent from the state rules. In federal court, at least 45 days before the pretrial conference, the parties must select and participate in one of the following settlement procedures:
- A settlement conference before the trial judge.
- A settlement conference before an appointed third-party attorney.
- A mediation before a retired judicial officer.
- A settlement conference before another Central District judge or magistrate selected at random.
In state court, Los Angeles Superior Court Rule 7.9(b)(5) empowers the trial judge to set a mandatory settlement conference at the judge's discretion. Besides this rule, the only other current rule concerning settlement procedures is that there are no settlement discussions with the trial judge unless all parties agree.
A lawyer has an easier time challenging a judge for prejudice during litigation in state court than in federal court. California Code of Civil Procedure Section 170.6 allows a party one preemptory challenge of a judge as a matter of right as long as the party or its attorney can declare under penalty of perjury that the judge is prejudiced against the party or its attorney, and the declarant believes that the challenged judge is unable to provide a fair and impartial trial. In federal court, however, a judge may be challenged through a motion to disqualify only upon a showing of manifest bias, prejudice, or partiality against the challenging party.
1 Conley v. Gibson, 355 U.S. 41, 47-48 (1957); Fed. R. Civ. P. 8(a)(2).
2 Code Civ. Proc. 425.10(a).
3 Code Civ. Proc. 474.
4 Bernson v. Browning-Ferris Industries of California, Inc., 7 Cal. 4th 926, 932 (1994).
5 Central District Local Rule 22.214.171.124.
6 Central District Local Rule 126.96.36.199.
7 Fed. R. Civ. P. 4(m).
8 L.A. Sup. Ct. Local Rule 7.7(a)(1).
9 Fed. R. Civ. P. 8(b).
10 Code Civ. Proc. 431.30(d).
11 There is no requirement that answers be verified, even in the few cases where complaints are required to be verified. See, e.g., Fed. R. Civ. P. 23.1 (shareholder derivative suits).
12 Code Civ. Proc. 446.
13 Fed. R. Civ. P. 12(a)(1)(A).
14 Code Civ. Proc. 412.20(a)(3).
15 Central District Local Rule 3.11.1.
16 L.A. Sup. Ct. Local Rule 7.7(a)(3).
17 Fed. R. Civ. P. 13.
19 Fed. R. Civ. P. 7(a), 12(a)(2).
20 Fed. R. Civ. P. 14.
21 Fed. R. Civ. P. 14(a).
22 Code Civ. Proc. 428.10.
23 Code Civ. Proc. 428.50(a).
24 Central District Local Rule 8.2.1.
25 Code Civ. Proc. 2030(c)(1).
26 Fed. R. Civ. P. 33(a).
27 Code Civ. Proc. 2030(c)(2), (3).
28 Central District Local Rule 8.2.2.
29 Central District Local Rule 8.2.3.
30 Fed. R. Civ. P. 36(a).
31 Code Civ. Proc. 2033(k).
32 Fed. R. Civ. P. 36(a).
33 Code Civ. Proc. 2033(g).
34 Fed. R. Civ. P. 34(b).
35 Fed. R. Civ. P. 45(c)(2)(B).
36 Code Civ. Proc. 2031(h).
37 Robert L. Weil & Ira A. Brown, Jr., California Practice Guide: Civil Procedure Before Trial 8:606 (1996).
38 Code Civ. Proc. 2031(g).
39 Code Civ. Proc. 1985.3.
40 Lantz v. Superior Court, 28 Cal. App. 4th 1839, 1848-49 (1994).
41 Fed. R. Civ. P. 26(e)(1).
42 Singer v. Superior Court, 54 Cal. 2d 318, 325 (1960).
43 Code Civ. Proc. 2030(c)(8).
44 Fed. R. Civ. P. 30(a)(2)(A).
45 Fed. R. Civ. P. 30(a)(1).
46 Fed. R. Civ. P. 30(a)(2)(C).
47 Code Civ. Proc. 2025(b)(2).
48 Central District Local Rule 9.4.6 (as implemented by the Central District's General Orders No. 96-13 and 96-15).
49 Code Civ. Proc. 2034(f).
50 Fed. R. Civ. P. 26(a)(2)(C); Central District Local Rule 9.4.6.
51 Code Civ. Proc. 2034(a)(3).
52 Fed. R. Civ. P. 16(b)(3).
53 Code Civ. Proc. 2024(a).
54 Fed. R. Civ. P. 29.
55 Code Civ. Proc. 2024(f).
56 See Central District's General Orders No. 96-13 and 96-15.
57 Central District Local Rule 7.4.
58 Central District Local Rule 7.6.
59 Central District Local Rule 7.7.
60 Code Civ. Proc. 1005(b); L.A. Sup. Ct. Local Rule 9.8(b).
61 Code Civ. Proc. 437c(a)-(c).
62 Central District Local Rule 7.14.4; Fed. R. Civ. P. 56(d).
63 Code Civ. Proc. 437c(f)(1); L.A. Sup. Ct. Local Rule 9.21(h)(1).
64 Fed. R. Civ. P. 56(a).
65 Code Civ. Proc. 437c.
66 Fed. R. Civ. P. 6.
67 Iverson v. Superior Court, 167 Cal. App. 3d 544, 548 (1985).
68 Central District Local Rule 3.10.
69 Cal. Rule of Ct. 201(b).
70 Central District Local Rule 3.6.2.
71 Central District Local Rule 3.4.1.
72 Cal. Rule of Ct. 313(d).
73 Central District Local Rule 3.9.3.
74 L.A. Sup. Ct. Local Rule 8.15; Cal. Rule of Ct. 313(c).
75 L.A. Sup. Ct. Local Rule 9.4(b).
76 Central District Local Rule 7.15.1.
77 Central District Local Rule 7.15.2.
78 Fed. R. Civ. P. 6(e).
79 Code Civ. Proc. 1013(c), (e).
80 Code Civ. Proc. 1013(a).
81 Central District Local Rule 3.4.10; Fed. R. Civ. P. 38(b).
82 Code Civ. Proc. 631(a)(4).
83 William W. Schwartzer, et al., California Practice Guide, Federal Civil Procedure
Before Trial 1:171 (1996).
84 Code Civ. Proc. 631(a)(5).
85 Central District Local Rule 23.
86 L.A. Sup. Ct. Local Rule 8.21.
87 Code Civ. Proc. 170.6; L.A. Sup. Ct. Local Rule 7.5.
88 28 U.S.C. 144.
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