Fazel v. Pete Fowler Construction Services, Inc.

Summary

The California Court of Appeal affirmed judgment on the pleadings in favor of Pete Fowler Construction Services in a negligence and third-party-beneficiary contract action arising from allegedly defective water-intrusion repair recommendations. The court held that the absolute litigation privilege applied because the formulation of the recommendations was necessarily related to an expert report prepared and communicated during litigation. The court distinguished a case involving noncommunicative physical conduct and concluded that the plaintiff could not pursue a derivative action based on her reliance on the opposing party’s expert report.

Holdings

1. The absolute litigation privilege barred Fazel's negligence and third-party-beneficiary contract claims because they arose from repair recommendations prepared and communicated in an expert report during a judicial proceeding.
2. The litigation privilege extends to Fowler Construction's formulation of the repairs because the formulation was necessarily related to the preparation and communication of the expert report.
3. Fowler Construction did not have a duty to ensure that the opposing party did not rely on its expert report, and Fazel could not hold Fowler liable for her decision to rely on the report during settlement.

Questions Presented

1. Whether judgment on the pleadings was properly granted because the absolute litigation privilege barred Fazel's negligence and third-party-beneficiary contract claims arising from repair recommendations prepared for and communicated in an expert report during litigation.
2. Whether the litigation privilege extends to the noncommunicative formulation of repairs when that formulation was necessarily related to the preparation and communication of an expert report.

Disposition

affirmed