Code Section Group

Code of Civil Procedure - CCP

PART 4. MISCELLANEOUS PROVISIONS [1855 - 2107]

  ( Heading of Part 4 amended by Stats. 1965, Ch. 299. )

TITLE 4. CIVIL DISCOVERY ACT [2016.010 - 2036.050]

  ( Title 4 added by Stats. 2004, Ch. 182, Sec. 23. )

CHAPTER 19. Perpetuation of Testimony or Preservation  of Evidence Before Filing Action [2035.010 - 2035.060]
  ( Chapter 19 added by Stats. 2004, Ch. 182, Sec. 23. )

2035.010.
  

(a) One who expects to be a party or expects a successor in interest to be a party to an action that may be cognizable in a court of the state, whether as a plaintiff, or as a defendant, or in any other capacity, may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), for the purpose of perpetuating that person’s own testimony or that of another natural person or organization, or of preserving evidence for use in the event an action is subsequently filed.

(b) One shall not employ the procedures of this chapter for purposes of either ascertaining the possible existence of a cause of action or a defense to it, or of identifying those who might be made parties to an action not yet filed.

(Amended by Stats. 2016, Ch. 86, Sec. 44. (SB 1171) Effective January 1, 2017.)

2035.020.
  

The methods available for discovery conducted for the purposes set forth in Section 2035.010 are all of the following:

(a) Oral and written depositions.

(b) Inspections of documents, things, and places.

(c) Physical and mental examinations.

(Added by Stats. 2004, Ch. 182, Sec. 23. Effective January 1, 2005. Operative July 1, 2005, by Sec. 64 of Ch. 182.)

2035.030.
  

(a) One who desires to perpetuate testimony or preserve evidence for the purposes set forth in Section 2035.010 shall file a verified petition in the superior court of the county of the residence of at least one expected adverse party, or, if no expected adverse party is a resident of the State of California, in the superior court of a county where the action or proceeding may be filed.

(b) The petition shall be titled in the name of the one who desires the perpetuation of testimony or the preservation of evidence. The petition shall set forth all of the following:

(1) The expectation that the petitioner or the petitioner’s successor in interest will be a party to an action cognizable in a court of the State of California.

(2) The present inability of the petitioner and, if applicable, the petitioner’s successor in interest either to bring that action or to cause it to be brought.

(3) The subject matter of the expected action and the petitioner’s involvement. A copy of any written instrument the validity or construction of which may be called into question, or which is connected with the subject matter of the proposed discovery, shall be attached to the petition.

(4) The particular discovery methods described in Section 2035.020 that the petitioner desires to employ.

(5) The facts that the petitioner desires to establish by the proposed discovery.

(6) The reasons for desiring to perpetuate or preserve these facts before an action has been filed.

(7) The name or a description of those whom the petitioner expects to be adverse parties so far as known.

(8) The name and address of those from whom the discovery is to be sought.

(9) The substance of the information expected to be elicited from each of those from whom discovery is being sought.

(c) The petition shall request the court to enter an order authorizing the petitioner to engage in discovery by the described methods for the purpose of perpetuating the described testimony or preserving the described evidence.

(Amended by Stats. 2005, Ch. 294, Sec. 14. Effective January 1, 2006.)

2035.040.
  

(a) The petitioner shall cause service of a notice of the petition under Section 2035.030 to be made on each natural person or organization named in the petition as an expected adverse party. This service shall be made in the same manner provided for the service of a summons.

(b) The service of the notice shall be accompanied by a copy of the petition. The notice shall state that the petitioner will apply to the court at a time and place specified in the notice for the order requested in the petition.

(c) This service shall be effected at least 20 days prior to the date specified in the notice for the hearing on the petition.

(d) If after the exercise of due diligence, the petitioner is unable to cause service to be made on any expected adverse party named in the petition, the court in which the petition is filed shall make an order for service by publication.

(e) If any expected adverse party served by publication does not appear at the hearing, the court shall appoint an attorney to represent that party for all purposes, including the cross-examination of any person whose testimony is taken by deposition. The court shall order that the petitioner pay the reasonable fees and expenses of any attorney so appointed.

(Added by Stats. 2004, Ch. 182, Sec. 23. Effective January 1, 2005. Operative July 1, 2005, by Sec. 64 of Ch. 182.)

2035.050.
  

(a) If the court determines that all or part of the discovery requested under this chapter may prevent a failure or delay of justice, it shall make an order authorizing that discovery. In determining whether to authorize discovery by a petitioner who expects a successor in interest to be a party to an action, the court shall consider, in addition to other appropriate factors, whether the requested discovery could be conducted by the petitioner’s successor in interest, instead of by the petitioner.

(b) The order shall identify any witness whose deposition may be taken, and any documents, things, or places that may be inspected, and any person whose physical or mental condition may be examined.

(c) Any authorized depositions, inspections, and physical or mental examinations shall then be conducted in accordance with the provisions of this title relating to those methods of discovery in actions that have been filed.

(Amended by Stats. 2005, Ch. 294, Sec. 15. Effective January 1, 2006.)

2035.060.
  

If a deposition to perpetuate testimony has been taken either under the provisions of this chapter, or under comparable provisions of the laws of the state in which it was taken, or the federal courts, or a foreign nation in which it was taken, that deposition may be used, in any action involving the same subject matter that is brought in a court of the State of California, in accordance with Section 2025.620 against any party, or the successor in interest of any party, named in the petition as an expected adverse party.

(Amended by Stats. 2005, Ch. 294, Sec. 16. Effective January 1, 2006.)

CCPCode of Civil Procedure - CCP