Filed 10/2/26 San Diego-Tomas v. Aspire Bakeries, LLC CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
CECILIA SAN DIEGO-TOMAS,
Plaintiff and Appellant, A175977
v.
(Alameda County Super. Ct.
ASPIRE BAKERIES, LLC,
No. 24CV078849)
Defendant and Respondent.
Plaintiff Cecilia San Diego-Tomas appeals a judgment dismissing her
complaint for discrimination and retaliation under the California Fair
Employment and Housing Act (FEHA) (Gov. Code,1 § 12900 et seq.) against
her former employer defendant Aspire Bakeries, LLC (Aspire). She does not
contest the dismissal of her complaint but contends that the trial court erred
in awarding Aspire $15,397.96 in costs without making the required finding
that her FEHA claims were frivolous. (§ 12965, subd. (c)(6).)2 We agree and
1 Undesignated statutory references are to the Government Code.
2 Section 12965, subdivision (c)(6) reads in relevant part: “In civil
actions brought under this section, the court, in its discretion, may award to
the prevailing party, . . . reasonable attorney’s fees and costs, . . . except that,
notwithstanding Section 998 of the Code of Civil Procedure, a prevailing
defendant shall not be awarded fees and costs unless the court finds the
action was frivolous, unreasonable, or groundless when brought, or the
plaintiff continued to litigate after it clearly became so.”
therefore reverse the judgment insofar as it awards costs to Aspire and
remand for further proceedings.
BACKGROUND
In August 2024, San Diego-Tomas filed a first amended complaint
asserting several causes of action for discrimination and retaliation under
FEHA, a claim for wrongful discharge in violation of public policy and a claim
for breach of contract.
In October 2025, the trial court granted Aspire’s motion for summary
judgment. The judgment, entered shortly thereafter, provides that Aspire “as
the prevailing party may recover costs as awarded upon the filing of a
memorandum of costs.”
On October 30, Aspire filed a memorandum of costs totaling $15,397.96.
On December 18, the trial court signed an amended judgment which
indicates that San Diego-Tomas had until November 18 to challenge the
request but did not do so. Accordingly, the amended judgment “confirms”
that Aspire is entitled to costs as set forth in its memorandum.
DISCUSSION
I.
As a general rule, the prevailing party in a lawsuit is entitled to recover
allowable costs. (Code Civ. Proc., § 1032, subd. (b).) “The established
procedure for recovering the costs allowed under section 1032 is to file a cost
memorandum, supported by a verified statement of counsel.” (Neeble-
Diamond v. Hotel California By the Sea, LLC (2024) 99 Cal.App.5th 551, 556
(Neeble-Diamond), citing Code Civ. Proc., § 1034, subd. (a); Cal. Rules of
Court,3 rule 3.1700(a)(1).) “In such cases, ‘If the items on a verified cost bill
appear proper charges, they are prima facie evidence that the costs, expenses
3 Undesignated rule references are to the California Rules of Court.
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and services therein listed were necessarily incurred,’ and ‘[t]he normal
procedure to challenge individual items is by a motion to tax costs.’
[Citation.] If no timely motion to tax costs is filed, the court has no
involvement with the cost award. Instead, rule 3.1700(b)(4) states ‘the clerk
must immediately enter the costs on the judgment.’ ” (Neeble-Diamond, at
p. 556.)
This procedure, however, does not apply in FEHA cases. “[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.” (Neeble-Diamond, supra, 99 Cal.App.5th at p. 557; Pollock v. Tri-
Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 949 (Pollock) [the
award of ordinary costs in FEHA litigation is governed by section 12965 not
by the general fee-shifting provision of Code of Civil Procedure section 1032,
subdivision (b)].)
In Neeble-Diamond, supra, 99 Cal.App.5th at page 557, the court held
that the filing of a costs memorandum was not an effective means of seeking
costs in a FEHA case because the clerk has no authority to exercise discretion
in awarding costs, let alone to make the frivolousness finding required by
section 12965. The court concluded, “Because Hotel California failed to file
the necessary motion for costs . . . it forfeited any such claim and Neeble-
Diamond had no obligation to respond to its ineffective cost memorandum.
We consequently conclude the court erred by signing an ‘amended judgment’
that included an award of $180,369.41 in costs to Hotel California.” (Id. at
p. 558.)
Relying on Neeble-Diamond, San Diego-Tomas argues that the
amended judgment must be reversed because she had no obligation to
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respond to Aspire’s ineffective cost memorandum and Aspire forfeited any
claim to costs by failing to file a proper motion.
Aspire contends, however, that Neeble-Daimond is inapplicable because
the trial court, not the clerk, entered the initial judgment awarding costs in
this case. It notes that the initial judgment confirmed that Aspire “was
entitled to costs to be awarded upon the filing of a memorandum of costs” and
the trial court thereafter affirmed that entitlement in the amended judgment.
Aspire argues that the court’s judgment therefore includes an implied finding
under section 12965, subdivision (c)(6) that San Diego-Tomas’s claims were
frivolous.
San Diego-Tomas did not file a reply brief and therefore has not
responded to this argument. Nonetheless, we do not find it persuasive.
In Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil &
Shapiro (2001) 91 Cal.App.4th 859, 867–868, the court held that the trial
court is required to make written findings when awarding attorney fees to a
successful FEHA defendant. The court explained that requiring an express
finding that the plaintiff’s action was frivolous, unreasonable, or without
foundation “will go a long way towards limiting defendants’ receipt of
attorney fees awards to [] extreme cases . . . . If we permit such awards to
stand without written findings, we fear the chilling effect described by
amicus curiae, whereby 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. Many such
clients may opt to forego the rights and remedies provided by FEHA, rather
than risk an attorney fees award which may well destroy their financial well-
being. Such a result would be directly contrary to the public policies FEHA
was designed to vindicate.” (Id. at p. 868.) The court added, “We are aware
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of the general rule providing ‘Where the court was not asked to and did not
make findings on the substantial factual issues involved in determining
whether the prevailing party was entitled to attorney fees, we must infer all
findings necessary to support the judgment. [Citations.]’ However, given the
important public policy issues served by FEHA are necessarily implicated in
a trial court’s decision to make an attorney fees award in an
antidiscrimination case, we are convinced such findings are required in order
to ensure those public policy issues are not thwarted.” (Ibid., footnotes
omitted.) The trial court’s failure to make written findings requires that “the
matter be reversed and remanded for findings” (ibid.) unless the record
“discloses that the court applied the appropriate standards. If the record
affirmatively indicates that the court applied the correct standards, the
court’s failure to put its findings into writing does not itself justify reversal.”
(Robert v. Stanford University (2014) 224 Cal.App.4th 67, 72.)
We have found no published authority extending the requirement for
express findings to the recovery of costs by a prevailing defendant under
section 12965, subdivision (c)(6). We see no reason, however, why the
requirement should not apply to costs as well as fees. While perhaps not as
sizable as a typical attorney fee award, the California Supreme Court has
twice recognized that costs incurred in FEHA litigation “ ‘can be substantial,
and the possibility of their assessment could significantly chill the
vindication of employees’ civil rights.’ ” (Pollock, supra, 11 Cal.5th at p. 949,
quoting Williams v. Chino Valley Independent Fire Dist. (2015) 61 Cal.4th 97,
114.)
Nothing in the record suggests that the court considered the
appropriate standard in awarding costs. While Aspire’s answer to the
amended complaint included a general prayer for costs if recoverable under
5
statute, its motion for summary judgment does not mention costs or argue
that San Diego-Tomas’s claims were frivolous, unreasonable, or without
foundation within the meaning of section 12965, subdivision (c)(6). The order
granting Aspire’s motion for summary judgment also does not mention costs
or discuss whether San Diego-Tomas’s claims were frivolous. And if
anything, the fact that the judgment described Aspire’s entitlement to costs
as flowing from its status “as the prevailing party” suggests that the court
incorrectly used the standard in section 1032 of the Code of Civil Procedure.
Although the term “prevailing party” also appears in subdivision (c)(6) of
section 12965, that subdivision makes clear that a defendant in a FEHA
action is not entitled to an award of costs simply insofar as it is the prevailing
party. Accordingly, we conclude that the costs order must be reversed.
II.
San Diego-Tomas contends that the costs order should be stricken
outright with no remand for further proceedings by the trial court. She
argues that Aspire waived its right to file a motion for costs by failing to
timely file a motion within 60 days of the entry of judgment. (See Anthony v.
City of Los Angeles (2008) 166 Cal.App.4th 1011, 1016 [motion for costs under
FEHA “is timely if filed within the same time constraints as those applicable
to a noticed motion for attorney fees”]; rule 3.1702(b)(1); rule 8.104(a)(1)(A).)
Aspire disagrees. It argues that the deadline for filing a motion for costs was
tolled during the pendency of this appeal under Code of Civil Procedure
section 916 and that San Diego-Tomas should be equitably estopped from
arguing waiver because she did not object to the costs order in the initial
judgment and the subsequent memorandum of costs.
“The purpose of the automatic stay provision of section 916,
subdivision (a), ‘is to protect the appellate court’s jurisdiction by preserving
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the status quo until the appeal is decided. The [automatic stay] prevents the
trial court from rendering an appeal futile by altering the appealed judgment
or order by conducting other proceedings that may affect it.’ ” (Varian
Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.) Further
proceedings in the action are stayed where they “directly or indirectly seek to
‘enforce, vacate or modify [the] appealed judgment or order’ ” or
“substantially interfere with the appellate court’s ability to conduct the
appeal.” (Id. at pp. 189–190.) Aspire fails to cite any authority suggesting
that the automatic stay tolls the time for filing a motion for costs under
rule 3.1702.
Under rule 3.1702(d), however, “[f]or good cause, the trial judge may
extend the time for filing a motion for attorney’s fees in the absence of a
stipulation or for a longer period than allowed by stipulation.” (See Robinson
v. U-Haul Co. of California (2016) 4 Cal.App.5th 304, 326 [Rule 3.1702(d) “ ‘is
“remedial” and is to be given a liberal, rather than strict interpretation’ ”].)
Given that the language in the initial judgment likely led to some confusion
in this case, remand is appropriate with directions to the trial court to
consider whether Aspire is entitled to relief under rule 3.1702(d).4
DISPOSITION
The amended judgment is reversed insofar as it awards Aspire costs.
The matter is remanded so the trial court may consider whether Aspire is
entitled to relief under rule 3.1702(d), and if so, to decide whether Aspire is
4 San Diego-Tomas argued in her opening brief that the costs award
cannot be justified by the existence of non-FEHA claims. Aspire responds
that these arguments are an improper attempt to limit the scope of any
remand but does not contend that the existence of non-FEHA claims provides
a basis to affirm the judgment. We decline to reach the parties’ arguments
about apportionment and leave that issue to be addressed on remand.
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entitled to costs and in what amount. San Diego-Tomas may recover her
costs on appeal.
GOLDMAN, J.
WE CONCUR:
BROWN, P. J.
STREETER, J.
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