The California Court of Appeal has affirmed a ruling in the case of Maryam Fazel v. Pete Fowler Construction Services, Inc. (G065455), which protects construction experts from liability in negligence claims. The court ruled that the litigation privilege applies to expert reports prepared during legal proceedings, preventing Fazel from holding Fowler Construction accountable for alleged negligence in repair recommendations.
This decision impacts individuals and businesses involved in legal disputes who rely on expert opinions, emphasizing the importance of the litigation privilege in protecting experts and their communications during legal proceedings.
Background
The dispute began when Maryam Fazel sued her neighbor, Alan Sakai, in June 2020, over water intrusion issues caused by Sakai's property. Sakai hired Pete Fowler Construction Services to assess the situation. Fowler inspected both properties and recommended repairs to prevent future water intrusion. This expert report was shared with Fazel, who agreed to the recommendations. Sakai then hired Avex Builders to implement the repairs, and Fazel settled her lawsuit against Sakai for $8,250.
However, after heavy rains in early 2022, Fazel's property experienced flooding again. In response, she filed a new lawsuit against Fowler Construction, Avex Builders, and Sakai, alleging negligence and other claims. The trial court initially granted Fowler's anti-SLAPP motion, which protects against lawsuits targeting free speech and petition rights, for some of the claims but denied it for others. Fowler subsequently appealed the denial related to the negligence and breach of contract claims.
The Ruling
The California Court of Appeal ruled that the trial court correctly granted judgment on the pleadings in favor of Fowler Construction. The court stated, "Fowler’s formulation of the repairs was an act necessarily related to a communicative act, and it was made in the course of a judicial proceeding, the absolute litigation privilege bars Fazel’s claims." This ruling emphasizes that the litigation privilege applies not only to communications but also to noncommunicative acts that are closely related to those communications.
The opinion highlighted that Fazel had the opportunity to challenge Fowler’s recommendations during the previous lawsuit but chose to settle instead. The court noted, "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." The judges on the panel included Justice Sanchez, Presiding Justice Motoike, and Justice Moore.
Impact
This ruling reinforces the concept of litigation privilege in California, which protects individuals and entities involved in litigation from subsequent lawsuits based on their communications during that process. The court's decision clarifies that expert recommendations made during litigation are shielded from liability, emphasizing the importance of the privilege in ensuring that experts can provide honest assessments without fear of retribution.
The ruling affects not only construction professionals but also any expert witnesses involved in litigation. It serves as a reminder that parties involved in legal disputes should carefully consider the implications of relying on expert reports from opposing parties, as the litigation privilege may prevent them from seeking recourse for perceived negligence.
What's Next
The ruling can be appealed to the California Supreme Court, but it is unclear whether Fazel will pursue that option. There are currently no related cases pending that would impact this ruling.