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San Diego-Tomas v. Aspire Bakeries (2026) --- Cal.Rptr.3d ----, 2026 WL 3181846
California Court of Appeal, First District, Division Four · (2026) --- Cal.Rptr.3d ----, 2026 WL 3181846 · A175977, filed October 2, 2026; certified for publication October 23, 2026 · Published opinion (PDF)
Summary for general education only—not legal advice. This is not a Workplace Rights Advocacy case result. See Case Results for the firm’s own verdicts and settlements.
San Diego-Tomas v. Aspire Bakeries, LLC (2026) --- Cal.Rptr.3d ----, 2026 WL 3181846, is a published California Court of Appeal decision about costs after an employer wins a FEHA case. Cecilia San Diego-Tomas sued Aspire Bakeries in Alameda County for discrimination and retaliation under the FEHA, wrongful discharge in violation of public policy, and breach of contract. In October 2025 the trial court granted summary judgment for Aspire. She did not challenge that dismissal on appeal. She challenged the amended judgment that awarded Aspire $15,397.96 in costs. The Court of Appeal reversed the cost award and sent that issue back to the trial court.
In an ordinary civil case, the winning party files a memorandum of costs and, if nobody moves to tax those costs, the clerk enters them. Code of Civil Procedure § 1032. A FEHA case uses a different rule. Government Code § 12965(c)(6) allows fees and costs to a prevailing defendant only when the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so. That limit applies notwithstanding Code of Civil Procedure § 998. The employer has to ask the court for a discretionary award. A cost memorandum is not that request, and the clerk cannot make the frivolousness finding. Neeble-Diamond v. Hotel California By the Sea, LLC (2024) 99 Cal.App.5th 551. Aspire’s judgment said it could recover costs “as the prevailing party” after it filed a memorandum. The summary-judgment papers never addressed whether San Diego-Tomas’s claims were frivolous. The court held that this kind of cost award needs an express finding under the FEHA standard, for the same reason a fee award does: the risk of paying the employer’s costs can keep workers from bringing claims. Williams v. Chino Valley Independent Fire District (2015) 61 Cal.4th 97; Pollock v. Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918. When the record shows the court used the correct standard, a missing writing may not by itself require reversal. This record pointed to the ordinary prevailing-party rule instead.
In plain English: the employer collects costs in a FEHA case only after the court finds the case was frivolous, unreasonable, or groundless, or that the worker kept litigating after it clearly became so. Missing the deadline to challenge a cost memorandum did not give up that protection, because the memorandum was the wrong procedure. The Court of Appeal left open a later request for costs. It sent the case back so the trial court can decide whether Aspire gets more time, under California Rules of Court, rule 3.1702(d), to file a proper motion, and only then whether any costs are appropriate and in what amount. The summary judgment stands. The court also left open whether costs tied to the non-FEHA claims, wrongful discharge and breach of contract, can be separated from the FEHA claims. San Diego-Tomas recovers her costs of the appeal. Related practice pages: discrimination, retaliation, wrongful termination, and FEHA remedies.
Related: Discrimination Claims · Retaliation Claims · Wrongful Termination · FEHA Remedies · Oakland Employment Lawyers