Reported / Citable
Background
Cecilia San Diego-Tomas sued her former employer, Aspire Bakeries, LLC, alleging discrimination and retaliation under California’s Fair Employment and Housing Act (FEHA), along with wrongful-discharge and contract claims. The Alameda County Superior Court granted summary judgment to Aspire. The judgment stated that Aspire, as the prevailing party, could recover costs after filing a memorandum of costs.
Aspire then claimed $15,397.96 in litigation costs. San Diego-Tomas did not file a motion to tax, or challenge, the listed costs. The trial court entered an amended judgment confirming the award. On appeal, San Diego-Tomas did not contest the dismissal of her claims; she challenged only the cost award, arguing that FEHA protects an unsuccessful plaintiff from paying a prevailing defendant’s fees and costs unless the action was frivolous, unreasonable, or groundless.
The dispute therefore concerned more than whether particular expenses were allowable. It asked what procedure a successful FEHA defendant must follow, and what findings a trial court must make, before shifting ordinary litigation costs to the employee.
The Court’s Holding
The First District reversed the cost portion of the judgment. FEHA displaces the ordinary rule that a prevailing party is automatically entitled to allowable costs. A prevailing FEHA defendant must obtain a discretionary judicial award based on the statutory standard, including a finding that the employee’s action was frivolous, unreasonable, or groundless when filed, or that the employee continued litigating after it clearly became so. Filing a routine cost memorandum does not by itself satisfy that requirement.
The court also held that the required finding must be express, rather than implied merely from the defendant’s victory. Written findings already protect FEHA plaintiffs when defendants seek attorney fees, and the same reasoning applies to costs because even ordinary costs can be substantial enough to discourage employees from enforcing civil-rights protections. Here, neither the summary-judgment papers nor the court’s order addressed frivolousness. The judgment’s reference to Aspire’s status as the prevailing party instead suggested that the trial court had applied the general cost rule, not FEHA’s more protective standard.
The appellate court did not permanently bar Aspire from seeking costs. It remanded so the trial court could decide whether good cause justified extending the deadline for a proper motion and, if so, whether Aspire could meet FEHA’s standard. The court rejected Aspire’s unsupported argument that the appeal automatically tolled the motion deadline, while recognizing that the original judgment’s language may have created procedural confusion.
Key Takeaways
- A defense win on summary judgment does not, standing alone, establish that a FEHA case was frivolous. The court must separately apply Government Code section 12965’s demanding defense-cost standard.
- A prevailing FEHA defendant should request costs by noticed motion, develop a record supporting frivolousness, and ask for an express finding. A standard memorandum of costs is not an adequate substitute.
- A FEHA plaintiff need not treat an ineffective cost memorandum like an ordinary cost bill or assume that silence automatically authorizes the clerk to add those costs to the judgment.
- Trial courts should not infer frivolousness from the result. Their findings should identify why the claims lacked a reasonable foundation when brought or why continued litigation became unjustified.
- Missed motion deadlines may sometimes be extended for good cause, but a party should not rely on an appeal to toll the deadline or on an appellate court to excuse an avoidable procedural error.
Why It Matters
The ruling gives employment litigators a concrete postjudgment checklist. Defense counsel should distinguish FEHA claims from ordinary civil claims before submitting a cost request, use a noticed motion, and support the request with the record rather than the fact of prevailing alone. Plaintiffs’ counsel should examine whether the defense used the proper procedure and whether the court actually made the statutory finding before advising a client that a cost award is enforceable.
The decision also preserves FEHA’s enforcement design. Employees can lose difficult or fact-dependent discrimination cases without automatically facing a financially devastating cost award. At the same time, defendants retain a remedy in genuinely baseless cases, provided they timely invoke the correct standard and give the trial court a record on which to exercise discretion. On remand, allocation between FEHA and non-FEHA claims may remain relevant, but the presence of additional claims did not rescue this unsupported award.