Do I Have to Pay My Employer's Costs If I Lose a FEHA Case?

Direct answer. Losing a California Fair Employment and Housing Act case does not automatically mean you owe your employer's costs. Government Code section 12965(c)(6) bars that award unless the court finds the case was frivolous, unreasonable, or groundless when filed, or you kept litigating after it clearly became so. San Diego-Tomas v. Aspire Bakeries, LLC reversed a cost award that skipped that finding.

Key takeaways

• A prevailing employer in a FEHA case is not entitled to costs just because it won.
• The trial court must find the action was frivolous, unreasonable, or groundless when brought, or that the worker continued after it clearly became so.
• Filing a cost memorandum, and the worker missing the deadline to challenge it, did not create that finding.
• The court reversed the $15,397.96 award and sent the issue back. It did not decide that the employer can never recover costs.
• The worker did not appeal the summary judgment. This decision is only about costs.

What happened in San Diego-Tomas

Cecilia San Diego-Tomas sued Aspire Bakeries, LLC in Alameda County, case No. 24CV078849. Her first amended complaint alleged FEHA discrimination and retaliation, wrongful discharge in violation of public policy, and breach of contract. In October 2025 the trial court granted the employer's motion for summary judgment. The judgment said Aspire, as the prevailing party, could recover costs awarded on a memorandum of costs.

On October 30, Aspire filed a memorandum seeking $15,397.96. San Diego-Tomas did not timely challenge it. On December 18 the court signed an amended judgment confirming those costs. She appealed the cost award. She did not contest the dismissal of her claims.

The First District Court of Appeal, Division Four, filed its opinion on October 2, 2026, and certified it for publication on October 23, 2026. The case is San Diego-Tomas v. Aspire Bakeries, LLC, A175977. Read the official opinion.

What the court held

In an ordinary civil case, the prevailing party recovers allowable costs as a matter of right by filing a cost memorandum. FEHA is different. Section 12965(c)(6) says the court may award reasonable attorney's fees and costs to the prevailing party, except that 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. The statute says this rule applies notwithstanding Code of Civil Procedure section 998.

The Court of Appeal held that a FEHA defendant is not entitled to costs merely because it is the prevailing party. The trial court's judgment and summary-judgment order did not find that San Diego-Tomas's claims were frivolous, unreasonable, or groundless. Aspire's answer prayed for costs in a general way, and its summary-judgment motion did not ask for a frivolousness finding. Confirming a cost memorandum because the worker missed a challenge deadline skipped the finding the statute requires.

The court followed the same reason California courts already require written findings before a prevailing FEHA defendant can recover attorney's fees. Costs can be large enough to discourage workers from bringing civil-rights claims. The Supreme Court has said that risk matters. The Court of Appeal saw no reason to demand findings for fees and skip them for costs.

San Diego-Tomas asked the court to strike the costs with no further proceedings, arguing Aspire waited too long to file a proper motion. The court did not hold that the request was gone forever. It held that the automatic stay on appeal did not, on the authority Aspire cited, extend the deadline. It also held the trial court may consider whether Aspire should get more time for good cause under California Rules of Court, rule 3.1702(d), because the original judgment's cost language caused confusion. If the trial court grants that relief, it must then decide whether Aspire is entitled to costs and in what amount.

The court declined to decide whether non-FEHA claims could support part of a cost award. Aspire did not argue that those claims were a reason to affirm. That question, if it matters, is for the trial court on remand. San Diego-Tomas may recover her costs on appeal.

The holding is narrow. It does not say a worker who loses a FEHA case can never be ordered to pay an employer's costs. It says the order is not automatic. The court must make the statutory finding, and in this case it had not.

What you owe Starpoint Law is a separate question

Section 12965(c)(6) is about costs a court might award to the other side. It is not a law firm's fee agreement.

With Starpoint Law, if we don't win, you owe Starpoint Law nothing: no attorney fee and no case costs. Employment cases and personal injury cases are both handled that way. The percentage, if there is a recovery, is written in the agreement and is negotiable. That promise is about what you owe this firm. It does not control whether a judge could order payment of an opposing party's costs in a case the court finds frivolous, unreasonable, or groundless. Read the employment lawyer cost guide and the contingency fee guide before you draw that line.

What this means for you

1. Do not treat a defense cost bill as automatic. In a FEHA case, ask whether a judge found the claim frivolous, unreasonable, or groundless.
2. A cost memorandum is not that finding. San Diego-Tomas did not lose her appeal by missing the memorandum deadline.
3. The case can still come back. The employer may ask for more time and then ask the court to make the finding. The opinion leaves that to the trial court.
4. Know which claims you filed. The court did not decide how costs work when a case also includes non-FEHA claims, such as breach of contract.
5. Mind the claim deadline, not only the cost deadline. She lost on summary judgment and did not appeal the merits. Use the deadline checker before a discrimination or retaliation claim gets old. Wrongful termination deadlines are discussed on our wrongful termination page.

The other October decisions are in our October 2026 roundup. Cruz v. City of Hermosa Beach, decided the same month, also declined to award FEHA costs on appeal because no frivolousness finding was made.

Frequently asked questions

Do I have to pay my employer's costs if I lose a FEHA case?

Not automatically. The court must find the case was frivolous, unreasonable, or groundless, or that you continued after it clearly became so.

Did San Diego-Tomas win her discrimination case?

No. She did not appeal the summary judgment. The court reversed only the cost award and sent that issue back.

Can the employer still seek costs?

Yes. The trial court must decide whether to allow a late motion and, if so, whether any costs should be awarded.

If Starpoint Law does not win, do I owe the firm?

No. If we don't win, you owe Starpoint Law nothing: no attorney fee and no case costs. That is our agreement, not this ruling.

Does this decision apply outside California?

It interprets California's FEHA. Starpoint Law handles California employment and injury cases only.

The information on this website is not legal advice. Prior results do not guarantee a similar outcome.

Talk with Starpoint Law. Call 310-424-9971 or request a free consultation. Offices are in Century City and Sherman Oaks. If we don't win, you owe Starpoint Law nothing: no attorney fee and no case costs.