Fazel v. Pete Fowler Construction Services, Inc. (June 23, 2026, No. G065455) 2026 WL 1803124
A homeowner sued her neighbor for damages caused by water leaking from the neighbor’s property. The neighbor retained a construction company to recommend repairs in an expert report prepared to respond to the homeowner’s litigation. The homeowner agreed to the recommendations and settled the suit. When the leak returned, the homeowner sued the construction company for negligence and breach of contract. The trial court held that the litigation privilege barred the homeowner’s reliance on the construction company’s recommendations for repair and entered judgment on the pleadings in favor of the construction company. The homeowner appealed.
The Court of Appeal affirmed. The court explained that the litigation privilege covers communications made in judicial proceedings by litigants and witnesses who might otherwise self-censor for fear of being sued over what they say in court. Although the construction company’s recommended repairs were not themselves communicative acts, they were “part of the testimonial process” and necessarily related to a communicative act protected by the litigation privilege: the preparation of an expert report in the course of the prior lawsuit.
