Reported / Citable
Background
In 2020, Maryam Fazel sued her neighbor Alan Sakai for water intrusion damaging her Orange County property. Sakai retained Pete Fowler Construction Services as a litigation expert. Fowler inspected both properties and prepared an expert report recommending specific repairs to stop the flooding. Sakai shared the report with Fazel, who agreed to the recommendations. Sakai hired a contractor to implement the repairs and paid Fazel $8,250 in settlement. The settlement documents identified the completed repairs — based on Fowler’s report — as the “necessary repairs” required under the agreement.
Within two months, heavy rains returned and Fazel’s property flooded again. In 2022, Fazel sued Fowler Construction directly for negligence and misrepresentation, alleging that the repair recommendations in Fowler’s expert report were defective and inadequate. Fowler moved for judgment on the pleadings, arguing that its work was shielded by California’s absolute litigation privilege. The trial court agreed and entered judgment for Fowler.
The Court’s Holding
The Fourth Appellate District affirmed. California’s litigation privilege — codified in Civil Code section 47, subdivision (b) — immunizes publications and communications made in the course of judicial proceedings. The privilege extends not only to oral and written communications but also to noncommunicative acts that are “necessarily related” to a privileged communication, as long as the gravamen of the plaintiff’s claim is communicative. The court held that Fowler’s formulation of repair recommendations was inseparable from the expert report it was designed to produce. The recommendations could not have harmed Fazel until they were communicated to her via the report. That communication — not some independent physical act — was the source of the alleged harm.
The court distinguished Mero v. Sadoff (1995), where a physician retained for a litigation medical examination physically injured the plaintiff with unnecessary body contortions during the exam — a purely noncommunicative act independent of any report. Here, by contrast, there was no independent physical act causing harm; every element of Fazel’s claim traced back to Fowler’s expert report and its communication in the litigation. The court also rejected Fazel’s argument that Fowler should have prevented her from relying on the report, noting that she had ample opportunity to retain her own expert, negotiate different terms, or continue litigating rather than settle.
Key Takeaways
- California’s absolute litigation privilege (Civ. Code § 47(b)) protects expert witnesses from negligence and misrepresentation claims for work done in the course of litigation, including formulating recommendations that become part of an expert report.
- The privilege extends to noncommunicative conduct (like formulating repair designs) that is necessarily related to a privileged communication (an expert report); what matters is whether the gravamen of the plaintiff’s claim is communicative.
- Parties who settle based on the opposing expert’s report have no post-settlement tort remedy against that expert if the recommendations prove faulty — the time to challenge an expert’s recommendations is during the litigation, not after.
- The litigation privilege is absolute; doubts about its application are resolved in favor of applying it.
- The correct venue to challenge opposing expert work product is in the prior litigation — by hiring a rebuttal expert, negotiating repairs, or refusing to settle.
Why It Matters
This decision confirms that California’s litigation privilege provides blanket protection to experts retained in litigation — not just from defamation or perjury claims, but from negligence suits targeting the quality of their work product. Any expert who formulates recommendations, prepares valuations, or designs solutions in the course of litigation is immune from derivative tort claims brought by parties who relied on those conclusions.
For construction litigants in particular, the case is a caution: if you are considering settling a construction-defect or property-damage case based on the opposing expert’s repair specifications, retain your own independent expert to verify the adequacy of those specifications before signing the settlement. Once the case is settled and the privilege attaches, there is no second bite at the apple. For plaintiff’s counsel handling water-intrusion, mold, or construction-defect matters, the case signals that third-party liability against the defendant’s expert is not a viable post-settlement recovery theory in California.