Lower Court Made No Predicate Finding That The Action Was Frivolous, With Boilerplate Language In Judgment Not Showing Express Findings Were Made To That Effect.
San Diego-Tomas v. Aspire Bakeries, LLC, Case No. A175977 (1st Dist., Div. 4 Oct. 2, 2026) (unpublished) is a situation where a FEHA non-prevailing plaintiff lost a summary judgment motion and where the lower court awarded $15,397.96 in routine costs under a judgment where there was no finding that the FEHA claims were frivolous. The appellate court reversed and remanded to see if that finding could be made and address a deadline issue. Although there is case law indicating that express frivolity findings need to be made for attorney’s fees awards and that a clerk cannot enter a costs award alone based on the need for findings in a FEHA case, respondent argued that the court judgment included an implied finding that the FEHA claims were frivolous. The First District, Division 4 was not persuaded. “We have found no published authority extending the requirement for express findings to the recovery of costs by a prevailing defendant under [Government Code] 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.’” [Citations omitted.]”