Key Points

  • A prevailing defendant in a FEHA case may recover ordinary costs only if the trial court expressly finds the action was frivolous, unreasonable, or groundless under Government Code section 12965, subdivision (c)(6).
  • The court extended to costs the written-findings requirement that Rosenman v. Christensen, Miller (2001) imposed on defense attorney fee awards, after finding no published authority doing so.
  • The court rejected Aspire Bakeries' argument that the judgment contained an implied frivolousness finding, because the record showed no consideration of the FEHA standard and the judgment's prevailing-party wording suggested the court used the general Code of Civil Procedure section 1032 rule.
  • The court held that Aspire cited no authority showing the automatic appellate stay tolls the deadline for a costs motion, but remanded for the trial court to consider a good-cause extension under rule 3.1702(d).
  • The court left apportionment of costs between FEHA and non-FEHA claims for the trial court on remand.

A California appeals court has ruled that an employer that defeats a worker's suit under the state's Fair Employment and Housing Act cannot recover its ordinary litigation costs unless the trial judge expressly finds that the suit was frivolous. The decision extends to costs a written-findings rule that California courts had applied to attorney fee awards in such cases.

The First District Court of Appeal, Division Four, reversed a $15,397.96 costs award to Aspire Bakeries LLC, which won summary judgment against its former employee, Cecilia San Diego-Tomas, in Alameda County Superior Court. Justice Goldman wrote the opinion for a unanimous three-judge panel that included Presiding Justice Brown and Justice Streeter. The court filed the opinion Oct. 2 and ordered it published in the Official Reports on Oct. 23.

Under the ruling, a winning defendant in a case brought under the act, known as FEHA, cannot collect costs through a cost memorandum, an itemized bill the court clerk enters on the judgment if the losing side does not challenge it. The defendant must instead ask the judge for a discretionary award. The statute permits that award only if the court finds the action "was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so."

San Diego-Tomas filed a first amended complaint in August 2024 asserting FEHA discrimination and retaliation claims plus claims for wrongful discharge in violation of public policy and breach of contract. In October 2025, Judge Sarah Sandford-Smith granted Aspire's motion for summary judgment. The judgment provided that Aspire "as the prevailing party may recover costs as awarded upon the filing of a memorandum of costs."

Aspire filed a memorandum on Oct. 30 seeking $15,397.96. San Diego-Tomas did not challenge it by the Nov. 18 deadline, and on Dec. 18 the trial court signed an amended judgment that "confirms" Aspire's entitlement to the listed costs. On appeal, San Diego-Tomas challenged only the costs award, not the dismissal.

The panel began with a 2024 appellate decision, Neeble-Diamond v. Hotel California By the Sea, which held that a cost memorandum is ineffective in a FEHA case because the clerk has no authority to exercise discretion or to find a suit frivolous. "[W]hen the defense prevails in a FEHA action, it has no automatic right to recover costs under section 1032," the panel quoted from that decision. Section 1032 of the Code of Civil Procedure is the general rule letting winning parties recover costs. The California Supreme Court held in Pollock v. Tri-Modal Distribution Services in 2021 that the FEHA statute, not section 1032, governs ordinary costs in FEHA cases.

Aspire argued that Neeble-Diamond did not apply because the trial court, not the clerk, entered the judgment that awarded costs. According to Aspire, the judgment therefore contained an implied finding that San Diego-Tomas's claims were frivolous. San Diego-Tomas filed no reply brief, but the panel rejected the argument anyway.

Justice Goldman relied on Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro, a 2001 appellate decision that required trial courts to make written findings before awarding attorney fees to a successful FEHA defendant. The Rosenman court had warned that if such awards stood without written findings, "employment lawyers must warn clients with valid claims of discrimination they may be subject to an award of attorney fees against them, in an amount far in excess of their life savings."

"We have found no published authority extending the requirement for express findings to the recovery of costs by a prevailing defendant," Justice Goldman wrote. "We see no reason, however, why the requirement should not apply to costs as well as fees." The opinion noted that the state Supreme Court has twice said FEHA costs "can be substantial, and the possibility of their assessment could significantly chill the vindication of employees' civil rights," citing Pollock and the court's 2015 decision in Williams v. Chino Valley Independent Fire District.

Under a 2014 appellate decision, Robert v. Stanford University, a missing written finding does not require reversal if the record affirmatively shows the trial court applied the correct standards. The panel found no such showing here. Aspire's summary judgment motion did not mention costs or argue frivolousness, and the order granting it did not address either issue. The judgment's reference to Aspire's status "as the prevailing party" instead "suggests that the court incorrectly used the standard in section 1032 of the Code of Civil Procedure," Justice Goldman wrote.

San Diego-Tomas asked the appeals court to strike the award outright, arguing that Aspire had waived costs by failing to file a motion within 60 days after entry of judgment. Aspire argued that the automatic stay pending appeal under Code of Civil Procedure section 916 tolled that deadline, and that San Diego-Tomas was equitably estopped from claiming waiver because she had not objected to the initial judgment or the memorandum.

The panel said Aspire "fails to cite any authority suggesting that the automatic stay tolls the time for filing a motion for costs." The panel nonetheless declined to strike the award outright. It pointed to California Rules of Court, rule 3.1702(d), which lets a trial judge extend the filing deadline for good cause. "Given that the language in the initial judgment likely led to some confusion in this case, remand is appropriate," the court wrote.

In a footnote, the panel left to the trial court the parties' dispute over apportioning costs between the FEHA and non-FEHA claims.

Lawyers for San Diego-Tomas included Angela Alioto of the Law Offices of Joseph Alioto & Angela Alioto. Aspire was represented by Oshua Mizrahi of Buchalter.

The case returns to Alameda County Superior Court, where the trial judge will consider whether Aspire is entitled to relief under rule 3.1702(d) and, if so, whether Aspire may recover costs and in what amount. The appeals court awarded San Diego-Tomas her costs on appeal.