Wednesday, June 24, 2026
Page 3
Court of Appeal:
Expert Witness Report Is Shielded by Litigation Privilege
Recommendations as to Repairs to Stop Flow of Water From Defendant’s Property to Plaintiff’s, Relied Upon in Forging Settlement and Implemented, Cannot Form Basis for Liability When Problem Recurred
By a MetNews Staff Writer
The Court of Appeal held yesterday that an expert witness report spelling out what repairs were needed to stop the flow of water from the defendant’s property to the plaintiff’s, which was relied upon by the parties in formulating a settlement agreement, is subject to the litigation privilege, thus barring a subsequent suit against the construction company that provided the recommendations which, after being implemented, proved ineffective.
Suing Pete Fowler Construction Services was Maryam Fazel, who was plaintiff in the earlier action against her neighbor, Alan Sakai. Yesterday’s opinion by Justice Maurice Sanchez of the Fourth District’s Div. Three affirms a judgment on the pleadings in favor of Fowler awarded by Orange Superior Court Judge Scott A. Steiner.
The issue was the applicability of Civil Code §47 which renders absolutely privileged certain publications, including, under subd. (b)(2), anything said in a “judicial proceeding.”
Steiner found that the privilege applies, explaining:
“First, Defendant’s report and recommendations were made in the underlying litigation, a judicial proceeding. Second, Defendant, as an expert/ consultant is a participant authorized by law to claim the privilege….Third, the report and recommendations were made to achieve the objects of the litigation, i.e., to repair Plaintiff’s property. And, finally, the report and recommendations are directly related to Plaintiff’s underlying lawsuit. The settlement was predicated on these communications.”
Appellant’s Contentions
Fazel argued on appeal, in a brief prepared by Orange attorney Vida Tarassoly:
“Extending litigation privilege to shield professionals from liability for negligent or defective work product actually used in repairs or treatments—merely because they were simultaneously retained as litigation experts in the same matter—would create a dangerous and unwarranted exception. This dual role blurs the line between protected testimony and actionable misconduct, leaving injured parties without recourse. Such an expansion would incentivize negligence by allowing professionals to cloak malpractice under the guise of expert engagement and would erode the public’s ability to obtain redress for professional breaches of duty. The law cannot permit litigation privilege to become a safe harbor for malpractice.”
Among the appellant’s contentions was that Steiner “failed to recognize that Fowler’s conduct of formulating and providing defective design constituted an independent, noncommunicative, and wrongful act, which is not protected by the litigation privilege.”
Sanchez’s Opinion
Sanchez declared that “[a]lthough the litigation privilege applies explicitly to communications, it can also extend to noncommunicative acts that are necessarily related to a communication.” He wrote:
“Here, although Fowler Construction’s alleged negligence in the ‘formulation’ of repairs may itself not have been a communicative act, it was necessarily related to one. The whole point of formulating repairs was to include them in an expert report (a communication) prepared in the course of litigation. Indeed, the formulation could not cause harm until it was communicated to Fazel by Sakai giving her Fowler’s expert report.”
The justice continued:
“Fazel had every opportunity to contest the adequacy of the suggested repairs by hiring her own expert to challenge Fowler’s recommendations, negotiating additional repairs, or, if necessary, continuing to litigate the case rather than settle it. In other words, Fazel’s opportunity to challenge the recommendations in Fowler’s expert report was in the previous lawsuit, not in a derivative lawsuit. This is exactly what the litigation privilege is designed to avoid.”
‘Tortured Logical Path’
Sanchez commented that an argument by Fazel “takes a bit of a strange and tortured logical path.” The appellant asserted that the recommendations set forth by Fowler, which were adhered to by a construction company, and did not prove efficacious, did not have a “logical relation” to the harm suffered by Fazel when, after a heavy rain, water again flowed from Sakai’s property to hers.
Her brief says:
“It is… illogical to treat the report as suitable for implementation as design recommendations, because it was not prepared under the strict standard that it be defect-free. A designer seeking to protect both himself and his client from defective outcomes prepares design documents with the utmost care to avoid defects; the Fowler Report was not created with that purpose in mind, it was made for mediation purposes and for the benefit of Sakai, not Fazel. Using the Report’s recommendations as the basis for the design and construction repairs to Fazel’s residence created a clear conflict of interest. Accordingly, the Report’s recommendations should never have been implemented for the actual construction of the repairs, and their use was harmful rather than useful. Respondent cannot be immune from liability for the allegedly faulty recommendations he provided for the construction of the repairs to Fazel’s property, which have resulted in damages.”
Jurist’s Response
Sanchez remarked:
“The suggestion here seems to be that Fowler had a duty to prevent Fazel from relying on the recommendations that Fowler produced in its expert report. However, Fazel has cited no authority for such an extraordinary proposition, and we flatly reject the notion that a retained expert has a duty to ensure that the opposing party does not rely on its expert report. Such a proposition is wholly inconsistent with the policies animating the litigation privilege.
“Nevertheless, we think Fazel’s misguided argument, in some sense, hits the nail on the head. This case is ultimately about Fazel’s decision, during the course of litigation, to rely on the opposing party’s expert report despite the obvious risk of bias. That was a decision that Fazel freely made having had ample opportunity to vet Fowler’s report with her own expert. She cannot now seek to hold Fowler liable for her own decision making.”
The case is Fazel v. Pete Fowler Construction Services, G065455.
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