San Diego-Tomas: A FEHA Defense Cost Award Needed the Right Findings

Losing a discrimination case did not, by itself, make the employee liable for the employer’s litigation costs. In San Diego-Tomas v. Aspire Bakeries, LLC, No. A175977 (Cal. Ct. App. Oct. 2, 2026), certified for publication October 23, the court reversed a $15,397.96 cost award because the record did not show application of FEHA’s heightened standard for a prevailing defendant. The dismissal of the employee’s claims remained intact.

The official opinion and publication order distinguish the original decision date from its later publication. The appeal concerned the cost award, not a second review of whether the employer should have won the underlying case.

The employee challenged costs without challenging dismissal

Aspire’s summary-judgment motion and the order granting it neither requested costs nor argued that the claims were frivolous. The later judgment said Aspire could recover costs “as the prevailing party” upon filing a memorandum. That sequence mattered: It pointed to the ordinary prevailing-party standard, rather than a prior exercise of FEHA discretion. Pages 5–6.

Cecilia San Diego-Tomas alleged discrimination and retaliation under California’s Fair Employment and Housing Act, along with other employment claims. After judgment for Aspire, the employer sought costs through a cost memorandum. The resulting judgment awarded $15,397.96. On appeal, the employee did not challenge the dismissal; she argued that the cost award lacked the finding required for a defendant in a FEHA action. Pages 1–3.

That separation is central to the result. An employee can lose on the merits without having brought a frivolous action. A defense judgment therefore does not automatically establish the statutory condition for shifting fees and costs to the employee.

A prevailing defendant must satisfy FEHA’s separate threshold

The court applied Neeble-Diamond v. Hotel California By the Sea, LLC (2024) 99 Cal.App.5th 551, 556–558: A defense cost memorandum cannot substitute for the motion and judicial determination FEHA requires. Aspire’s proposed distinction—that a judge rather than a clerk entered its judgment—did not supply the missing analysis. Pages 3–6.

Government Code section 12965(c)(6) permits a discretionary award but bars an award to a prevailing defendant unless the court finds the action frivolous, unreasonable or groundless when brought, or continued after it clearly became so. The ordinary prevailing-party cost procedure under Code of Civil Procedure section 1032 does not supply that finding. Pages 2–4.

A clerk processing a cost memorandum cannot make the discretionary judicial determination FEHA requires. The court held that a defendant seeking these costs must proceed by noticed motion. Calling Aspire the prevailing party in the judgment did not show that the court had examined the action under the heightened standard.

The record did not support an implied finding

The court extended the written-findings rule from Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 867–868, to defense costs. It also applied Robert v. Stanford University (2014) 224 Cal.App.4th 67, 72: A record affirmatively showing use of the correct standard can make the missing writing insufficient, by itself, to require reversal. Here, the surrounding record showed no such analysis. The reason for requiring findings was practical. As Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 949, recognized, substantial cost exposure can discourage employees from pursuing valid discrimination claims. Pages 4–6.

Aspire argued that the trial court had implicitly found the claims frivolous. The Court of Appeal rejected that reading. A finding that an employee failed to prove a claim is different from a finding that the claim met the statutory threshold for defense costs. The award could not stand merely because the judgment favored the employer.

The employee’s failure to respond to the ineffective memorandum did not create an entitlement to costs. The required noticed motion and judicial FEHA determination remained missing. Pages 3–6.

Reversal did not permanently foreclose a proper request

The employee sought outright deletion of the award, arguing that Aspire had missed the cost-motion deadline. She relied on Anthony v. City of Los Angeles (2008) 166 Cal.App.4th 1011, 1016, and rules 3.1702(b)(1) and 8.104(a)(1)(A). Her argument sought forfeiture of the cost request. The court instead remanded for consideration of a good-cause extension under rule 3.1702(d), because the initial judgment’s language likely caused confusion. If an extension is granted, the trial court must decide entitlement and amount. Pages 6–8.

Aspire cited no authority showing that an appeal’s automatic stay tolled the cost-motion deadline. The court proceeded to the separate good-cause-extension question. Page 7.

Because the complaint included non-FEHA claims, allocation of costs between claims could also matter. The appellate court left that issue for remand; Aspire had not offered it as a basis to affirm the existing award. Footnote 4.

What the decision changes in a cost-paper review

Separate the underlying judgment, the cost memorandum, any noticed motion, and the court’s findings. Ask whether the defendant requested a discretionary FEHA award through the proper procedure and whether the record addresses the statutory standard. Our guide to an employer’s cost bill explains how those papers fit together without confusing defense costs with the employee’s own attorney-fee agreement.