CRD v. City of Torrance: Claiming Fair Chance Act Compliance Waived Privilege Over the City’s Individualized Assessments

Your job offer was withdrawn after a background check, and the employer told the California Civil Rights Department (CRD) it had complied with the Fair Chance Act. In this published decision, the Court of Appeal upheld a finding that the City of Torrance, by claiming that compliance, waived any attorney-client or work-product privilege over the content of its individualized assessments, so it had to give them to CRD even though a lawyer helped prepare them; the court did not decide whether the documents were privileged to begin with or whether the City violated the Act.

In Civil Rights Department v. City of Torrance, No. B352855 (Cal. Ct. App. Sept. 29, 2026), certified for publication Oct. 27, 2026, the Second District, Division One, affirmed a superior court order compelling the City to produce its assessment forms and completed assessments in CRD’s investigation.

A Custodian Job Offer, a Background Check and a CRD Investigation

Walter J. interviewed for a custodian position with Torrance in September 2022 and received a contingent job offer. A state Department of Justice report showed convictions dating back to 1996, and the City preliminarily decided to rescind. He submitted materials he believed showed rehabilitation, but the City withdrew the offer.

The final letter accepted his explanations for most convictions but relied on a 2019 conviction for fighting in a public place as recent enough and relevant enough to a custodian’s duties. After Walter complained to CRD on October 27, 2023, the City defended the decision, citing custodians’ daily contact with the public and its zero-tolerance workplace-violence policy, and said it had “compli[ed] with the requirements of . . . [s]ection 12952”.

On October 24, 2024, CRD notified the City that it had filed a director’s complaint, citing information that, if proven, indicated Torrance disqualified a group or class of applicants because of certain crimes “without performing an adequate individualized assessment.” That is CRD’s allegation, not a finding.

What the Fair Chance Act Requires Before an Offer Is Withdrawn

The Fair Chance Act, Government Code section 12952, applies to employers with five or more employees. Before withdrawing an offer because of a conviction, the employer must make an individualized assessment of whether the conviction history has “a direct and adverse relationship with the specific duties of the job,” weighing the nature and gravity of the offense, the time that has passed and the nature of the job.

The statute then requires a written preliminary decision, at least five business days to respond, consideration of the applicant’s response and a final written notice that includes the right to complain to CRD.

The City Withheld Every Assessment as Privileged

CRD asked for the City’s assessment templates and, for each applicant rejected wholly or partly because of criminal history since January 1, 2022, the assessment and reassessment documents. Torrance admitted it had responsive documents but refused to produce them, saying its “individualized assessments were prepared with counsel.” An assistant city attorney declared that two starting documents contained “my conclusions of what the law requires,” and that two human resources employees “document my legal advice.”

CRD argued that the documents were never privileged because their dominant purpose was an ordinary hiring evaluation and that Torrance had waived any privilege. The superior court granted CRD’s petition on the waiver ground. The City refused to produce a privilege log, offering instead a list of 23 applicants reviewed the same way as Walter.

Claiming Compliance Put the Assessments at Issue

The Court of Appeal reviewed the order for abuse of discretion and did not decide whether the documents were privileged to begin with; it held that the trial court acted within its discretion in finding any privilege waived.

Under the California Supreme Court’s waiver rule, which the court applied, a party waives privilege when it puts the protected communication “directly at issue” and disclosure is essential to a fair adjudication. The court relied on Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, which held that an employer defending a hostile-work-environment claim by pointing to a law firm’s investigation cannot then shield that investigation. It agreed with the trial court’s concern that an employer could otherwise avoid its obligations “by simply delegating that task wholesale to in-house counsel.”

The City’s first argument on appeal was that the trial court should have reviewed each document. The court answered that the party claiming privilege bears the burden of the preliminary facts, and Torrance had shown no basis for treating one document differently from another. The court noted the City’s concession that it withheld all assessment and reassessment documents because all were prepared with the attorney’s involvement, and found that, by routinely involving an attorney and claiming privilege, the City sought to shield its entire decision-making process.

Second, the City said it had never put the sufficiency of its assessments at issue, even while asserting that it complied with section 12952. The court’s answer: “Both things cannot be true.” Compliance means weighing the statutory factors and the applicant’s response, and the governing regulation (Cal. Code Regs., tit. 2, § 11017.1) requires “a reasoned, evidence-based determination.” In the court’s words, “To comply with the statute, an employer may not go through the motions.” By claiming compliance, Torrance waived any claim to privilege “as to the content of those assessments.”

The Result, and Who Can Use It

The court affirmed the order compelling production and awarded CRD its costs on appeal. Because the decision is published, it binds California trial courts. Whether Torrance’s assessments of Walter or anyone else were adequate is left to CRD’s investigation, which was ongoing when the opinion issued.

In our reading, the statute lets an employer choose not to put its assessment in writing, but once Torrance did and then defended the decision as compliant, those documents became the evidence of whether it actually weighed the record against the job, and a lawyer’s involvement did not shield them. An applicant whose offer was withdrawn should keep the preliminary notice, the conviction report, everything submitted in response and the final letter. For a decision about the response deadline and proof of harm, see our analysis of McInerney.