A prevailing FEHA defendant’s unopposed $15,397.96 costs award is reversed for want of a frivolousness finding
Can a prevailing FEHA defendant recover its costs just by filing a memorandum of costs? In San Diego-Tomas v. Aspire Bakeries, LLC, the First District, Division Four, said no. The employer won summary judgment, filed a cost memorandum the employee never challenged, and obtained an amended judgment for $15,397.96. The Court of Appeal reversed that award because nothing showed the trial court found the lawsuit frivolous, unreasonable or groundless.
What happened in San Diego-Tomas
A former employee sued Aspire Bakeries, LLC for discrimination and retaliation under the Fair Employment and Housing Act (FEHA), wrongful discharge in violation of public policy, and breach of contract. The trial court granted Aspire summary judgment. The judgment stated that Aspire, “as the prevailing party may recover costs as awarded upon the filing of a memorandum of costs.”
Aspire did exactly that. It filed a memorandum of costs for $15,397.96. The employee did not challenge it, and the court signed an amended judgment confirming Aspire’s entitlement to those costs. On appeal the employee did not contest the loss of her claims. She challenged only the costs.
Can a prevailing defendant in a FEHA case recover costs?
Ordinarily, the prevailing party in a California civil case recovers its allowable costs under Code of Civil Procedure section 1032, usually by filing a cost memorandum. If no one moves to tax, the clerk enters the costs. The court explained that this routine does not work in a FEHA case. Government Code section 12965, subdivision (c)(6) allows a prevailing defendant to recover fees or costs 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.”
Quoting Neeble-Diamond v. Hotel California By the Sea, LLC, the court explained:
“[W]hen the defense prevails in a FEHA action, it has no automatic right to recover costs under section 1032; instead, it must move the court to make a discretionary award of such costs, based in part on a specific finding that the action was frivolous.”
Can a frivolousness finding be implied from the judgment?
Aspire argued that the judgment’s award of costs implied the necessary finding. The court rejected that argument. Prior authority required written findings before a FEHA defendant may recover attorney fees, and the court extended that rule to costs: “We see no reason, however, why the requirement should not apply to costs as well as fees.”
The record did not help Aspire. Its summary judgment motion and the order granting it did not address costs or frivolousness, and the judgment spoke only of Aspire as “the prevailing party,” which, if anything, suggested the court used the ordinary section 1032 standard. A missing written finding does not by itself require reversal when the record affirmatively shows the court applied the correct standard, but here the record showed nothing of the kind. As the court wrote, “Nothing in the record suggests that the court considered the appropriate standard in awarding costs.” The bottom line: “a defendant in a FEHA action is not entitled to an award of costs simply insofar as it is the prevailing party.”
Does an appeal pause the deadline to seek costs or fees?
Aspire also argued that the automatic stay on appeal, under Code of Civil Procedure section 916, tolled the deadline in California Rules of Court, rule 3.1702 for bringing a motion. The court said Aspire failed to cite any authority for that proposition. It pointed instead to rule 3.1702(d), which lets the trial judge extend the time for good cause.
The court did not end the matter there. Because the original judgment’s wording “likely led to some confusion,” it reversed the amended judgment insofar as it awards Aspire costs and remanded so the trial court may consider whether Aspire is entitled to relief under rule 3.1702(d), and if so, whether Aspire is entitled to costs and in what amount. The court left for remand the parties’ arguments about apportioning costs between the FEHA and non-FEHA claims, and it awarded the employee her costs on appeal.
For more on how the rule 3.1702 clock works, see our earlier note on when the fee-motion deadline starts.
What this means in practice
- In a FEHA case, a defense win on the merits does not by itself carry costs. The defendant has to ask the court for the statutory finding.
- Language in a judgment that simply calls a party “the prevailing party” will not be read as a finding that the case was frivolous.
- An unopposed cost memorandum did not protect the award on appeal.
- A pending appeal should not be assumed to pause a trial-court deadline. Aspire offered no authority that it did, and it was left to ask for a good-cause extension on remand.
Key takeaways
- A prevailing FEHA defendant has no automatic right to costs under Code of Civil Procedure section 1032.
- Under Government Code section 12965, subdivision (c)(6), a FEHA defendant’s costs depend on a finding that the action was frivolous, unreasonable or groundless, and here nothing in the record showed the trial court applied that standard.
- A judgment that refers only to “the prevailing party” does not supply that finding by implication.
- Aspire cited no authority that the automatic stay on appeal tolls the rule 3.1702 deadline, and the court remanded for the trial court to consider a good-cause extension under rule 3.1702(d).
Why appeals like this one need an appellate lawyer
San Diego-Tomas shows how a routine post-judgment step can decide an appeal. The employer won the case, followed the procedure the judgment itself described, and faced no opposition. It still lost the award, because a FEHA defendant’s costs turn on a finding the court never made, and a cost memorandum cannot supply it.
The deadline problem compounded the risk. Aspire argued that the appeal paused the rule 3.1702 clock and cited no authority for it. Its remaining path was a request for a good-cause extension on remand, which the trial court may or may not grant.
An appellate lawyer looks at these questions before the judgment is entered: which statute governs costs, what finding the record needs, which order starts each clock, and whether anything actually stops it while an appeal is pending. The employee’s side shows the other half of the job, which is reading the judgment for what it is missing and appealing only what can be won. If you have a costs or fee award coming out of an employment case, talk to an appellate lawyer early, before a deadline runs or a finding goes unmade.
What this post is not. This post is attorney advertising and general information about a court decision. It is not legal advice, and reading it does not create an attorney-client relationship. Every case turns on its own facts and record, and appellate deadlines are short and often jurisdictional — talk to appellate counsel about your case promptly.
Facing a ruling you may need to appeal or challenge by writ? Yisrael Gelb · yisrael@gelblawapc.com · (323) 632-6864