California Partition Law Blog
Discovery is an important tool for parties in a lawsuit to get information to prepare for trial and to decide what issues to focus on in a case. In California, the rules governing discovery are laid out in the Civil Discovery Act in Title 4 of the Code of Civil Procedure. These discovery rules apply to civil lawsuits and special proceedings of a civil nature (Code Civ. Proc. § 2035) Probate proceedings are special proceedings, so these discovery procedures are equally applicable. (Estate of Joseph (1897) 118 Cal. 660, 663.) This is important because it allows parties to use deadlines and other discovery tools to their advantage in a probate proceeding.
The Civil Discovery Act applies to probate proceedings and disputes. (Prob. Code § 1000(a).) The normal rules of discovery in civil actions apply, and as such the same discovery procedures are available for use in probate court. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 987.) One part of probate proceedings is marshalling assets, which involves locating and taking inventory of a decedent’s assets. A representative may suspect third persons are withholding property or have knowledge about property, special discovery procedures can be used to require the third party to answer relevant questions. (Prob. Code § 8870-8873.)
In probate court, any time requirements laid out in the discovery act begin to run after service of petition and notice of hearing. (Prob. Code, § 1000(b).) This means a petitioner in a proceeding can begin discovery regarding parties and nonparties once a petition is filed. (Morris Stulsaft Foundation v. Superior Court In and For City and County of San Francisco (1966) 245 Cal. App. 2d 409, 415.) If they use it strategically, parties can rely on the Code of Civil Procedure to give them an advantage.
In almost all civil litigation in California, a major issue is the formal process of exchanging information and documents that address claims or defenses in dispute between the parties. In this system, discovery is “self-executing.” That means that no party to the lawsuit has any obligation to provide any information, unless requested through the formal methods outlined in the Civil Discovery Act.