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self-study / Civil Procedure

Apr. 26, 2019

Procedure in California state courts vs the Federal Rules of Civil Procedure

William Slomanson

Distinguished Professor Emeritus, Thomas Jefferson School of Law


William Slomanson is also the author of California Procedure in a Nutshell (5th ed. 2014).


There have been innumerable revisions to the state and federal procedural rules in the 80 years since promulgation of the Federal Rules of Civil Procedure. Interim imitations and amendments have yielded countless procedural differences between the nation's state and federal courts.

There is precious little time to devote to individual consideration of the "other" judicial systems' solution to the practice at hand. There are numerous state and federal entities that periodically propose intra-system or single-subject changes. Nevertheless, there is no "go to" institution with the resources to routinely canvass this genre of civil practice.

A recently launched project compares state and federal procedure in California. It does not advocate for state-federal uniformity, nor for uniformity among the states. It envisions a grassroots approach to initiating and sustaining more informed procedural reform. The project's next phase would likewise identify significant state and federal differences in other states -- the majority of which are no longer FRCP replicas. The core purpose of this project is to encourage a governmental entity, or a nongovernmental organization, or an innovative law school to commission interested parties to prepare like studies outside of California.

This Daily Journal nutshell offers a succinct restatement of project essentials. Space limitations herein prohibit detailed explanations, citation of relevant sources, any discussion of exceptions, intersystem federalism, or assessments of which contrasting procedure is "better." Related details are available in "California Federal Procedural Contrast: A Proposal," 327 Federal Rules Decisions 1301 (and on Westlaw).

Subject Matter Jurisdiction: The superior court amount-in-controversy requirement distinguishes between limited and unlimited cases. California's $25,000+ benchmark is far less than the federal diversity jurisdiction $75,000+ minimum amount requirement. There is no minimum amount for most federal question cases.

Personal Jurisdiction: State defendants must attack personal jurisdiction via a first appearance motion to quash. If denied, they must seek writ review within 10 to 20 days of served notice of denial. Federal defendants may plead the personal jurisdiction affirmative defense in the answer. They may subsequently make the dismissal motion before trial. Unlike California's comparatively rushed mandatory writ practice, federal defendants normally cannot seek personal jurisdiction appellate review until after final judgment.

Pleading Nomenclature: State defendants may expand the scope of the litigation in three discrete ways via the cross-complaint. Federal defendants do so via the counterclaim, cross-claim and third-party complaint. This author's first state case featured over 50 cross-complaints. The essential gist of each was by no means evident from the uniform, but maddeningly generic, state pleading nomenclature.

Basic Pleading Test: State complaints must contain a "statement of facts constituting the cause of action." They must include a fact for each element of each cause of action. In federal complaints, an element may be missing, or improperly plead. But those complaints must contain a "short and plain statement" that puts the defendant on "fair notice" of the claim. Federal pleading is not "meant to ... require, or even invite, the pleading of facts," but rather to demonstrate "facial plausibility."

Pleading Damages: In state personal injury and wrongful death cases, plaintiffs cannot include the amount of compensatory damages in the complaint. Nor can they state the amount of punitive damages in any complaint. A damage amount must be stated in the prayer of a federal complaint. Furthermore, unlike federal cases, California subjects punitive damage pleas to a heightened pleading standard.

"Doe" Defendants: Failure to include fictitious "Doe" defendants in a California tort complaint borders on malpractice. In federal venues, John Doe is occasionally tolerated, but rarely entitled to safe passage. John finally achieved some respect in 1988. Congress compelled the federal courts to neither accept nor deny, but rather ignore, fictitious defendants -- in cases removed from state to federal court.

Anti-SLAPP Motion: Both judicial systems incorporate a general motion to strike. Only state courts expressly authorize a special motion to strike on constitutional grounds. Unlike the mixed-result 9th Circuit, anti-SLAPP motions have been squarely rejected by the D.C., 7th and 10th Circuits.

Arbitrator Error: Countrywide practice generally prohibits judicial review of arbitral awards for errors of fact or law. In California, the parties may agree to withhold the arbitrator's power to commit such errors. But the parties may not agree to this limitation in federal court.

Initial Core Disclosures: State parties must ask for witness, document and insurance information during the discovery stage. Federal parties must exchange this initial core disclosure prior to commencing formal discovery.

Scope of Discovery: California's procedure code definition of relevance authorizes inquiry into the subject matter of the case; and into matter which is "admissible ... or reasonably calculated to lead to ... admissible evidence." Federal discovery is generally limited to the claim or defense allegations in the pleadings. The FRCP recently deleted the "admissible" and "lead to admissible" tandem in favor of merely "need not be admissible."

Continuing Discovery Responses: Discovery responses in both systems must not be incorrect or misleading. California does not otherwise require the responding party to update prior discovery responses. Federal responses, however, must be timely updated by the responding party.

"Deemed" Admission Motion: Failure to serve, or timely serve, state responses to requests for admission authorizes the requesting party to move for an order that the genuineness of any documents, and the truth of any matters specified in the request for admission, be deemed admitted. The same non-response in federal court results in automatic admissions. The delinquent responder must petition the court to be excused from "deemed" admissions.

Diligent Prosecution Statutes: The California procedure code requires service on defendants within three years of filing the complaint; and trial within five years of filing. There are shorter deadlines under the Trial Delay Reduction Act. Federal defendants must be served within 90 days of filing. The FRCP do not contain a specific time frame for bringing a case to trial. But local rules of California's federal districts facilitate such dismissals when plaintiffs have been inactive.

Separate Statement: A state summary judgment motion must contain a separate statement. The FRCP do not require separate statements. Some federal trial judges allow them. Most prohibit them.

Expert Testimony: California expert discovery and trial testimony must be premised upon "generally accepted" techniques in the relevant scientific community (and not just the few who may have vetted a new technique). This approach effectively defers admissibility to the expert community. Under the U.S. Supreme Court's interpretation of FRE 702, the comparatively liberal federal standard ties admissibility to a number of factors involving relevancy and reliability. This gives the federal judicial "gatekeeper" more flexibility -- to independently assess the methodological validity of the proffered scientific evidence.

Offer of Judgment: Either California party may make a statutory offer of judgment. Only the defending party may make a federal offer of judgment. The state offer of judgment period is 30 days, and revocable. The federal period is 14 days, and irrevocable. A California defense judgment does not affect the operation of the offer of judgment statute. A federal defense judgment negates a defendant's otherwise conforming offer of judgment. In addition to costs, a state litigant may recover expert witness fees as a consequence of an unaccepted offer of judgment. The FRCP are silent regarding expert witness fees, resulting in no Rule 68 fee award.

Relief from Judgment/Order: State and federal trial judges may relieve a party or lawyer from a judgment or order -- resulting from his or her "mistake, inadvertence, surprise, or excusable neglect." But a California court shall vacate such results, whenever an application for relief is accompanied by an attorney's sworn affidavit -- attesting to causing the client's default or dismissal. There is no such mandatory relief process in the FRCP.

Law-Equity Right to Jury: Assume there is a right to jury trial and the pleadings present overlapping law and equity issues. A state trial judge may try the equity issues first -- which a federal judge cannot do. Another systemic difference arises when an equity complaint pleads incidental legal relief. The state judge, unlike a federal judge, may hear and determine both types of relief without a jury.

Jury Size and Percentages: California civil juries normally consist of 12 persons. Federal civil juries often consist of six members. Regarding the required minimum for a verdict, three-fourths of a California jury must agree. A federal verdict must be unanimous, absent a stipulation to the contrary.

Interlocutory Review: One may readily appeal final judgments and the enumerated interlocutory orders conveniently listed in the state procedure code. Orders not therein enumerated are reviewable via discretionary writ. Attempting to articulate the basis for federal appellate review -- prior to final judgment as to all issues and parties -- presents a definitional nightmare with no equal in American civil procedure.

Death Knell Doctrine: This remedy is triggered by a class action denial that effectively sounds the death knell of small individual claims. State appealability is usually a given. The U.S. Supreme Court, and now the FRCP, have rejected the automatic appealability of such denials.

Claim Preclusion: California ceremoniously clings to its minority "primary rights" approach to the res judicata impact of a prior judgment. When federal courts are examining a prior federal judgment, they apply federal common law. For prior state judgments, federal diversity courts cede preclusive effect if the courts of the rendering state would do so.

Unpublished Case Citation: Unpublished California cases may not be cited as precedent in California -- except for claim or issue preclusion purposes. Unpublished federal opinions may be cited in both systems.


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