Lost a FEHA Case and Received the Employer’s Cost Bill? Check the Motion and Findings

If you lose a California discrimination or retaliation case and receive the employer’s cost bill, check more than the total. A prevailing defendant in a FEHA action must meet a heightened standard before the court can shift fees and costs to you. A defense judgment alone does not establish that standard. Preserve the papers and review the response dates promptly; do not assume the bill is either automatically valid or safe to ignore.

Identify what the employer actually filed

A judgment, a cost memorandum and a noticed motion serve different purposes. The judgment resolves the claims. A cost memorandum lists requested litigation expenses. A noticed motion asks the court to exercise its authority after the opposing party has an opportunity to respond. Save each document with its service record, rather than relying on the amount shown in an online case summary.

Separate the employer’s requested litigation costs from its attorney fees and from your own agreement with your lawyer. Identify exactly which obligation each document seeks to impose.

Find the FEHA finding, not just the prevailing-party label

Under the standard discussed in San Diego-Tomas v. Aspire Bakeries, LLC, No. A175977 (Cal. Ct. App. Oct. 2, 2026), certified October 23, a prevailing FEHA defendant cannot obtain fees and costs unless the court finds the action frivolous, unreasonable or groundless when brought, or continued after it clearly became so. The court must exercise discretion under Government Code section 12965(c)(6). Losing is not the same as meeting that threshold. Opinion, pages 3–6.

Look for the motion’s stated basis and the court’s written findings. Does the employer identify why the action lacked a reasonable foundation, or merely point to its victory? Does the court apply the heightened standard, or only name the prevailing party? The opinion required express written findings for costs and explained why the record there did not establish the correct analysis.

This is a review of the actual record, not a search for one missing phrase in isolation. The court recognized that a record showing application of the right standard could affect the consequence of missing written findings. A lawyer should assess the ruling and surrounding proceedings together before advising that a cost award necessarily fails.

Do not treat a cost memorandum as the entire process

In San Diego-Tomas, the employee had not responded to the employer’s cost memorandum. That silence did not turn the ordinary cost procedure into the noticed motion and judicial determination FEHA required. The court reversed the $15,397.96 award while leaving the dismissal of the employment claims intact. Pages 1–6.

The practical response is to identify the proper objection and procedure, not to repeat the silence. A different case may include a noticed motion, a separate order or a valid basis for costs on another claim. Review every served document and any scheduled hearing. Preserve proof of when notice was given; an informal exchange with the employer’s lawyer should not be assumed to extend a court deadline.

Check timing and mixed claims separately

For the employer’s motion, San Diego-Tomas reports the employee’s argument that the attorney-fee timing rules applied and the request was late. The court remanded for a possible good-cause extension under rule 3.1702(d), because the initial judgment likely caused confusion. It found no supporting authority for Aspire’s appeal-tolling argument. Pages 6–8. A remand therefore reopened the timing inquiry before any renewed cost determination.

First identify whose deadline is at issue. The ordinary cost-memorandum response procedure is distinct from the employer’s deadline to request a discretionary FEHA award. The FEHA defect described above also matters when selecting the response. California Rules of Court, rule 3.1700(b)(1), sets a 15-day period after service of an ordinary cost memorandum for serving and filing a motion to strike or tax costs, subject to the specified mail or electronic-service extensions. Subdivision (b)(2) calls for item-by-item objections in the memorandum’s order unless the entire request is challenged. Preserve the service record so counsel can calculate the applicable date and select the proper response.

If the lawsuit combined FEHA and non-FEHA claims, ask which expenses relate to which claims and whether allocation is necessary. The appellate court expressly left allocation for the trial court on remand. Footnote 4.

A useful review packet answers four questions

Bring the complaint, final judgment, cost memorandum, any fee or cost motion, the court’s rulings, and proof of service. Those papers should establish what was requested, through which procedure, under which legal standard, and by what response date. Include any appeal or stay orders, but do not assume they suspend every remaining obligation.

The case analysis explains why the award was reversed and why a renewed request remained possible. We can review your papers to identify the actual cost issue while preserving the distinction between challenging that award and challenging the merits judgment.