Full Opinion

Filed 10/2/26; Certified for Publication 10/23/26 (order attached) 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. 2 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 3 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 4 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 6 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. 7 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. 8 Filed 10/23/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR A175977 CECILIA SAN DIEGO-TOMAS, (Alameda County Super. Ct. Plaintiff and Appellant, No. 24CV078849) v. ORDER CERTIFYING OPINION ASPIRE BAKERIES, LLC, FOR PUBLICATION Defendant and Respondent. [NO CHANGE IN JUDGMENT] THE COURT: The October 6, 2026 request for publication of this court’s October 2, 2026 opinion is granted, and it is hereby ordered that said opinion be published in the Official Reports. Dated: _________________ _________________________ Brown, P. J. 1 Trial Court: Alameda County Trial Judge: Hon. Sarah Sandford-Smith Counsel for Appellant: Law Offices of Joseph Alioto & Angela Alioto Angela Alioto Steven L. Robinson Counsel for Respondent: Buchalter Oshua Mizrahi Adam P. Smith 2