Filed 9/29/26 Civil Rights Department v. City of Torrance CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
CIVIL RIGHTS DEPARTMENT, B352855
Plaintiff and Respondent. (Los Angeles County
Super. Ct. No. 25STCP04155)
v.
CITY OF TORRANCE,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Virginia Keeny, Judge. Affirmed.
Liebert Cassidy Whitmore, J. Scott Tiedemann, Megan K.
Atkinson and Juliana Pech for Defendant and Appellant.
Rob Bonta, Attorney General, Michael Newman, Assistant
Attorney General, Vilma Palma-Solana and Jesse P. Basbaum,
Deputy Attorneys General, for Plaintiff and Respondent.
________________________
Plaintiff Civil Rights Department (CRD) is investigating
whether defendant City of Torrance (Torrance or the City) has
violated Government Code section 12952,1 the Fair Chance Act,
which restricts the circumstances in which an employer may
decline to hire a prospective employee due to the employee’s
criminal record. When responding to CRD about a job applicant’s
complaint concerning the City’s adherence to the Fair Chance
Act, Torrance provided CRD with a narrative explanation of the
City’s purported compliance. When CRD later instituted
administrative proceedings against Torrance involving that
applicant and others, the City withheld documents responsive to
CRD’s discovery requests on the ground that the documents
underlying the City’s narrative explanation, which included
individualized assessments of prospective employees and forms
for creating such assessments, were protected by attorney-client
and work product privilege.
CRD sought relief in superior court, and the court granted
CRD’s motion to compel on the ground that Torrance waived any
claim of privilege by describing its compliance with the law as a
defense to CRD’s claims. We find no abuse of discretion and
affirm.
FACTS AND PROCEEDINGS BELOW
A. Background on the Fair Chance Act and the
Investigation
Because the underlying dispute in this case concerns the
City’s compliance with the Fair Chance Act, we begin by
1 Unspecified statutory references are to the Government
Code.
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explaining the requirements of that law. An employer with five
or more employees may not ask about a prospective employee’s
conviction history until after making a conditional offer of
employment (§ 12952, subd. (a)(1) & (2)), and may not consider at
all arrests that did not lead to conviction, referrals to diversion
programs, or convictions that have been sealed, dismissed, or
expunged (id., subd. (a)(3)). After making a conditional
employment offer, the employer may conduct a criminal
background check (id., subd. (b)), but it may not rescind the offer
of employment on the basis of a criminal 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” (id., subd. (c)(1)(A)). The
assessment must consider “[t]he nature and gravity of the offense
or conduct,” “[t]he time that has passed since the offense or
conduct and completion of the sentence,” and “[t]he nature of the
job held or sought.” (Id., subd. (c)(1)(A)(i)–(iii).) If the employer
preliminarily decides to rescind an employment offer because of
the prospective employee’s criminal history, it “shall notify the
applicant of this preliminary decision in writing” (id., subd. (c)(2))
and give the applicant an opportunity to respond (id., subd.
(c)(3)). The employer must take the applicant’s response into
account before finally revoking the employment offer (id., subd.
(c)(4)), and in that case must notify the applicant of his right to
file a complaint with the CRD (id., subd. (c)(5)).
On October 27, 2023, Walter J. filed a complaint with the
CRD alleging that Torrance had discriminated against him on
the basis of his criminal record. Walter interviewed in
September 2022 for a position with Torrance as a custodian and
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received a contingent job offer. The Torrance Human Resources
Department sent him a letter asking him to explain two
misdemeanor convictions: one from 2018 for fighting in public,
and one from 2011 for driving with a suspended license. Walter
submitted a packet of materials that he believed showed he had
rehabilitated himself, but Torrance notified him that it was
rescinding his job offer because of his criminal history.
CRD notified Torrance of the complaint and requested a
response to the allegations. The City denied it violated the law in
rescinding Walter’s offer of employment. It stated that, pursuant
to its policy, it performed a criminal background check only after
conditionally offering Walter employment. The California
Department of Justice (DOJ) provided a report showing many
misdemeanor convictions beginning with a conviction for theft in
1996. Torrance performed an initial individualized assessment
and “determined that [Walter’s] criminal conviction history had a
direct and adverse relationship with the specific duties of the
[c]ustodian position that justified preliminarily rescinding the
offer of employment.” The City notified Walter that “a
preliminary decision has been made to rescind the job offer based
on the five misdemeanor convictions for driving with a suspended
license, driving without a license, driving while under the
influence of alcohol, domestic battery, providing false
identification to a [p]eace [o]fficer, fighting in a public place or
challenging someone to fight and a felony conviction for false
personation of another.”2
2 According to the DOJ report, the conviction for fighting
occurred in 2019. Walter was convicted of driving without a
license in 2018, driving on a suspended license once in 2010, once
4
The City stated that it considered the information Walter
provided in response to its notification and made a final decision
to rescind the job offer. In its letter to Walter, the City explained
that it accepted Walter’s explanation as to several of his
convictions. In particular, it agreed that Walter’s conviction for
providing false identification had been dismissed, that he had
successfully rehabilitated from domestic battery, that the
conviction for false personation was too old to be relevant, and
that the driving offenses were not being considered due to the
elapsed time, the nature of the custodian position, and Walter’s
possession of a valid driver’s license. Nevertheless, the City
decided that the 2019 conviction for fighting in a public place or
challenging someone to fight was recent enough and relevant
enough to the duties of a custodian to preclude Walter’s
employment.
In its response to the CRD, Torrance elaborated on this
explanation, noting that “custodians are required to work and
interact daily with colleagues, supervisors, managers, other City
employees, and members of the public,” and that because of their
visibility as City employees, they are required to “exercise solid
judgment and decision making at all times.” Torrance also cited
its zero tolerance policy on workplace violence as justifying the
decision. The City identified two decision makers who conducted
the individualized assessment. The City concluded that it
“compli[ed] with the requirements of . . . [s]ection 12952” and that
its decision to revoke Walter’s employment offer “was not based
in 2013, and twice in 2014, domestic battery and providing a false
identification to a police officer in 2006, and false personation of
another in 2001.
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on his sex/gender or race,” but “was based solely on his criminal
conviction history.”
On October 24, 2024, CRD notified the City that it had filed
a director’s complaint against Torrance.3 The notice stated that
the CRD “ha[d] obtained information which, if proven, indicates
that [Torrance] . . . engage[d] in unlawful discriminatory
practices adversely affecting a group or class of applicants with
criminal records by disqualifying applicants from employment
based on the presence of certain types of crimes in their criminal
history without performing an adequate individualized
assessment, in violation of . . . section 12952, subdivision (c).”
The investigation conducted pursuant to the complaint “shall
include, but is not limited to,” Walter’s claims of discrimination,
and would be treated as a group or class investigation.
B. The Instant Petition
One year after filing its director’s complaint, CRD filed a
petition in the superior court for an order compelling compliance
with its investigative requests for production. The petition
alleged that Torrance had unreasonably refused to comply with
the following CRD requests for the production of documents:
“Request for Production No. 3: Any and all documents that
reflect any practice relating to your evaluation of an applicant’s
3 CRD enforces many of California’s employment related
laws, including the Fair Chance Act. (§§ 12930, subds. (f)-(h),
12965.) To discharge that enforcement responsibility, CRD can
conduct administrative investigations, including document
production requests, to determine whether violations have
occurred. (E.g., §§ 12930, subd. (g)(1) & (4), 12963.5, subd. (a).)
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criminal history, including individualized assessment templates,
forms, and instructions, since January 1, 2022. [¶] . . .
“Request for Production No. 6: For each applicant who was
denied employment by you solely or in part because of their
criminal history since January 1, 2022, all documents related to
your assessment of whether that applicant’s conviction history
had a direct and adverse relationship to the specific job duties of
the position applied for. [¶] . . .
“Request for Production No. 9: For each applicant who was
denied employment by you solely or in part because of their
criminal history since January 1, 2022, all documents related to
your re-assessment, if any, of whether that applicant’s conviction
history had a direct and adverse relationship to the specific job
duties of the position applied for.” (Boldface and capitalization
omitted.)
Torrance acknowledged it had documents responsive to
each request but refused to produce them. In each case, Torrance
had objected that the requests were vague, ambiguous, and
overbroad, and also claimed that the requests sought documents
protected by attorney-client and work product privileges because
the City’s “individualized assessments were prepared with
counsel.” Torrance identified documents responsive to each of the
three requests that it regarded as privileged. In particular, an
assistant city attorney declared that “[t]he City has utilized two
documents when starting to conduct individualized assessments.
These two documents contain my conclusions of what the law
requires.” In addition, the City acknowledged that it possessed
documents of its individualized assessments of applicants with
criminal records, but it claimed these documents were privileged.
The assistant city attorney declared that in making
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individualized assessments of applicants with criminal records, “I
consult with” two city employees, and these employees “document
my legal advice. The City has withheld these documents because
they are privileged.”
CRD contended the City’s privilege claims were meritless
because “the dominant purpose of the [City’s] documented
individualized assessments is not to facilitate and further the
attorney-client relationship, but rather to evaluate whether there
is a direct and adverse relationship between the disqualifying
conviction sufficient to justify the job denial.” CRD also alleged
that Torrance had implicitly waived its claim of privilege by
asserting that its individualized assessment of Walter’s criminal
history was adequate, thereby “plac[ing] at issue a
communication which ‘goes to the heart of the claim in
controversy.’ (Chicago Title Ins. Co. v. Superior Court [(1985)]
174 Cal.App.3d [1142,] 1149 . . . .)”
The superior court granted CRD’s petition to compel
production of the documents at issue. The court found that the
City had waived any claim of privilege by raising the adequacy of
its individualized assessments as a defense to CRD. Torrance
timely appealed, and we have jurisdiction to consider this
interlocutory order. (§ 12963.5, subd. (d).)
DISCUSSION
The City claims the documents at issue are protected by
attorney-client and work product privilege, and that the superior
court erred by finding it waived any claim of privilege.4 We
4 The superior court also rejected Torrance’s claim that the
requests for production were vague and overly broad. Torrance
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review the superior court’s determinations on questions of
privilege, like other discovery orders, for abuse of discretion.
(Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725,
733.) “The abuse of discretion standard is not a unified standard;
the deference it calls for varies according to the aspect of a trial
court’s ruling under review. The trial court’s findings of fact are
reviewed for substantial evidence, its conclusions of law are
reviewed de novo, and its application of the law to the facts is
reversible only if arbitrary and capricious.” (Haraguchi v.
Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.)
Torrance has identified two classes of documents that it
claims are privileged. In the first class are two documents “[t]he
City has utilized . . . when starting to conduct individualized
assessments.” CRD characterizes these as “blank templates that
were used to conduct individualized assessments.” The City
claims this is an “oversimplif[ication],” but it does not elaborate
further. According to the attorney who prepared these
documents, they “contain my conclusions of what the law
requires,” and the City claims they are privileged on that basis.
(See Code Civ. Proc., § 2018.030.) The second category comprises
the written assessments themselves, which were prepared by two
Torrance human resources professionals in consultation with the
same attorney who created the templates. According to the City,
these are privileged because they served to “initiate and assist in
discussions with [the attorney] and the documents contain [the
attorney’s] legal advice.”
does not challenge that aspect of the court’s decision, and we do
not address it.
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CRD contends neither category of document is privileged,
arguing that any legal advice the attorney provided in reference
to the individual assessments was only incidental to what is an
ordinary human resources function. Communications with a
lawyer do not become privileged merely because they concern an
issue of legal significance unless “the dominant purpose of these
communications was of a legal nature.” (Montebello Rose Co. v.
Agricultural Labor Relations Bd. (1981) 119 Cal.App.3d 1, 32;
accord, Costco Wholesale Corp. v. Superior Court, supra, 47
Cal.4th at p. 735.) CRD argues that by routinely involving a
lawyer in the individual assessments and then asserting privilege
as to all resulting documents, Torrance is attempting to use
privilege to shield its ordinary human resources decisions from
scrutiny and disclosure.
We need not decide whether the documents were privileged
in the first instance because the court did not abuse its discretion
in finding that Torrance waived any claim of privilege that might
apply to the documents in question.
“[T]he person or entity seeking to discover privileged
information can show waiver by demonstrating that the client
has put the otherwise privileged communication directly at issue
and that disclosure is essential for a fair adjudication of the
action.” (Southern Cal. Gas Co. v. Public Utilities Com. (1990) 50
Cal.3d 31, 40 [attorney-client privilege]; see also People v.
Superior Court (Jones) (2021) 12 Cal.5th 348, 364-365 [attorney
work product].) In Wellpoint Health Networks, Inc. v. Superior
Court (1997) 59 Cal.App.4th 110, the court applied this doctrine
to a case where an employer sought to defend itself from a
lawsuit alleging a hostile workplace environment. The employer
claimed it had taken the appropriate steps to respond to the
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employee’s complaints, including by hiring a law firm to
investigate the case. The court stated that “the employer’s
injection into the lawsuit of an issue concerning the adequacy of
the investigation where the investigation was undertaken by an
attorney or law firm must result in waiver of the attorney-client
privilege and work product doctrine.” (Id. at p. 128, citing
Harding v. Dana Transport, Inc. (D.N.J. 1996) 914 F.Supp. 1084.)
In other words, “[i]f a defendant employer hopes to prevail by
showing that it investigated an employee’s complaint and took
action appropriate to the findings of the investigation, then it will
have put the adequacy of the investigation directly at issue, and
cannot stand on the attorney-client privilege or work product
doctrine to preclude a thorough examination of its adequacy.”
(Wellpoint, supra, at p. 128.)
The superior court in this case found the reasoning in
Wellpoint directly applicable: “Because the City contends in the
face of the investigation by the CRD that it complied with these
requirements in conducting its individualized assessment,
Wellpoint holds that it cannot shield the investigation it
conducted by asserting the attorney client or work product
privileges. The court further observes that applying Wellpoint to
investigations initiated by the CRD is 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.”
We agree with the superior court’s reasoning, especially as
to its last statement. In her declaration, the assistant city
attorney stated that she is involved in the hiring process “when
applicants have a criminal history.” In its statement of decision,
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the superior court stated that “[t]he City conceded at [oral]
argument that it has withheld all documents reflecting and
constituting the assessment process, as well as the reassessment
process, because all such documents were prepared in this
manner.” 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.
The City contends the superior court erred by rejecting its
claim of privilege wholesale, rather than examining each
document individually, as the court advised in Wellpoint.
(Wellpoint Health Networks, Inc. v. Superior Court, supra, 59
Cal.App.4th at p. 122.) But the City, as the party seeking the
protection of the privilege, bears the burden of establishing the
preliminary facts in support of the privilege (Costco Wholesale
Corp. v. Superior Court, supra, 47 Cal.4th at p. 733), and it has
not shown any basis for distinguishing between the documents at
issue. CRD is investigating Torrance’s compliance with section
12952. 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.5
Torrance also contends Wellpoint does not apply because
unlike in that case, it did not “put the adequacy of the
investigation directly at issue.” (Wellpoint Health Networks, Inc.
v. Superior Court, supra, 59 Cal.App.4th at p. 128.) The City
5 Torrance refused to produce a privilege log, and instead
provided a list of 23 applicants whose criminal histories were
investigated in the same manner as Walter’s as part of a Fair
Chance Act review.
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claims “it complied with . . . section 12952,” but it also claims it
“has never put the sufficiency of its individualized assessments at
issue.” Both things cannot be true. 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 statute requires an employer,
when making an initial assessment, to consider “[t]he nature and
gravity of the offense or conduct,” “[t]he time that has passed
since the offense or conduct and completion of the sentence,” and
“[t]he nature of the job held or sought.” (Id., subd. (c)(1)(A)(i)-
(iii).) When making a final assessment, the employer must also
“consider information submitted by the applicant . . . before
making a final decision.” (Id., subd. (c)(4).) The governing
regulation makes clear what was implicit in the text of the
statute: an individualized assessment must be “a reasoned,
evidence-based determination 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.” (Cal. Code Regs., tit. 2, § 11017.1, subd. (c)(1).) To
comply with the statute, an employer may not go through the
motions. By claiming it complied with the statute and
regulations, the City put at issue the way it performed its
individualized assessments. In so doing, Torrance waived any
claim to privilege as to the content of those assessments.
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DISPOSITION
The superior court’s order is affirmed. Respondent is
awarded its costs on appeal.
NOT TO BE PUBLISHED
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
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