SECTIONS 2035.010-2035.060 - California Statutes

CODE OF CIVIL PROCEDURE

SECTION 2035.010-2035.060

2035.010. (a) One who expects to be a party or expects a successor
in interest to be a party to any action that may be cognizable in any
court of the State of California, whether as a plaintiff, or as a
defendant, or in any other capacity, may obtain discovery within the
scope delimited by Chapters 2 (commencing with Section 2017.010) and
3 (commencing with Section 2017.710), 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 the
purpose either of 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.

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.

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.

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.

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.

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.