Key Points

  • The Second District, Division One, affirmed an order compelling the City of Torrance to produce Fair Chance Act individualized assessments and assessment templates to the Civil Rights Department.
  • The court held that Torrance waived attorney-client and work-product protection by asserting that it complied with Government Code section 12952, which put the adequacy of its assessments at issue.
  • The court did not decide whether the documents were privileged in the first instance.
  • The court rejected the city's demand for document-by-document review because the city bore the burden of establishing privilege and offered no basis for distinguishing among the documents.
  • The court extended the at-issue waiver reasoning of Wellpoint Health Networks, Inc. v. Superior Court from an employer's harassment-investigation defense to a Civil Rights Department investigation.

A California appeals court has ruled that the City of Torrance must give state civil rights investigators the internal reviews it used to withdraw job offers from applicants with criminal records. The court held that the city gave up any legal privilege over those records when it told investigators it had followed the law.

A three-justice panel of the Second District Court of Appeal, Division One, affirmed a Los Angeles County Superior Court order compelling Torrance to produce the documents to the state Civil Rights Department. Justice Weingart wrote the opinion, and Presiding Justice Rothschild and Justice Bendix joined it. The panel filed the opinion on Sept. 29 and ordered it published in the Official Reports on Oct. 27.

The decision addresses employers that bring their lawyers into criminal-history hiring decisions and then claim the resulting paperwork is confidential. The panel applied a waiver rule under which a party that puts an otherwise privileged communication directly at issue cannot withhold it when disclosure is essential for a fair adjudication. The court said it did not need to decide whether the documents were privileged in the first place.

The Fair Chance Act, Government Code section 12952, bars employers with five or more employees from asking about conviction history until after a conditional job offer. An employer may not then rescind the offer over a conviction unless it conducts "an individualized assessment of whether the applicant's conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position." The employer must weigh the offense, the time elapsed and the job, then notify the applicant in writing and consider any response before deciding.

The dispute began with an applicant identified as Walter J., who interviewed in September 2022 for a Torrance custodian job and received a contingent offer. Walter J. submitted materials he believed showed his rehabilitation, and the city accepted his explanations for several convictions. It nonetheless withdrew the offer over a 2019 conviction for fighting in a public place, which it found recent enough and relevant enough to a custodian's duties.

Walter J. filed a complaint with the department on Oct. 27, 2023. In its response, Torrance said custodians must "exercise solid judgment and decision making at all times," cited its zero-tolerance policy on workplace violence, and stated that it had "compli[ed] with the requirements of . . . [s]ection 12952."

In October 2024 the department notified the city that it had filed a director's complaint and would treat the matter as a group or class investigation. The notice said the department had information indicating that Torrance was disqualifying applicants based on certain crimes "without performing an adequate individualized assessment." A year later the department petitioned the superior court to compel production of the city's assessment templates and its assessments and reassessments of applicants denied jobs since Jan. 1, 2022.

Torrance acknowledged that it had responsive documents but withheld them as attorney-client communications and attorney work product. An assistant city attorney declared that the two template documents "contain my conclusions of what the law requires," and that the two city employees who prepared the assessments "document my legal advice." The city refused to produce a privilege log and instead listed 23 applicants whose records it had reviewed the same way.

Superior Court Judge Virginia Keeny granted the department's petition. Keeny wrote that applying the waiver rule to department investigations was "particularly appropriate, if not required, because otherwise an employer could avoid its obligation to properly review and analyze criminal history records by simply delegating that task wholesale to in-house counsel."

The appeals court relied on Wellpoint Health Networks, Inc. v. Superior Court, a 1997 decision in which an employer defended a hostile-workplace suit by citing a law firm's investigation of the employee's complaints. That court held that an employer relying on such an investigation "cannot stand on the attorney-client privilege or work product doctrine to preclude a thorough examination of its adequacy."

Justice Weingart wrote that the panel agreed with the trial judge, "especially as to its last statement." The opinion quoted the trial court's statement of decision, which said the city had conceded at argument in that court that it withheld all documents reflecting its assessment and reassessment processes. "By routinely involving an attorney in decisions on the Fair Chance Act and claiming privilege, Torrance seeks to shield all internal documents regarding its decision-making process from review," Weingart wrote.

The panel rejected the city's argument that the trial court should have reviewed each document individually, as Wellpoint advised. Torrance bore the burden of establishing privilege and had offered no basis for treating the documents differently, the court said. "We do not see, and the City does not explain, why it would have waived its claim of privilege as to one document but not to another," Weingart wrote.

The city also argued that, despite claiming compliance, it had never put the sufficiency of its assessments at issue. "Both things cannot be true," Weingart wrote. "The City cannot demonstrate it complied with section 12952 without putting at issue the adequacy of the individualized assessments it conducted pursuant to that section."

The opinion pointed to a state regulation requiring that an individualized assessment be "a reasoned, evidence-based determination" of whether the conviction history justifies denying the job. "To comply with the statute, an employer may not go through the motions," Weingart wrote. By claiming compliance, the court held, Torrance "waived any claim to privilege as to the content of those assessments."

Lawyers for Torrance included J. Scott Tiedemann of Liebert Cassidy Whitmore. The department was represented by the office of California Attorney General Rob Bonta.

The ruling leaves in place the order requiring Torrance to produce the templates and assessments in the department's pending investigation. Torrance did not appeal the trial court's rejection of its objections that the requests were vague and overbroad. The panel awarded the department its costs on appeal.