Hartwig

The trial court entered an order under Labor Code section 3856, allocating from a workers’ compensation lien an amount for attorney fees and costs incurred by plaintiff Matthew Hartwig in obtaining the judgment from which the lien was satisfied. On appeal by the lienholder, defendant Zacky Farms (Zacky), we will affirm, and hold that Zacky presented insufficient evidence to prove it “actively participated” in the lawsuit which resulted in the judgment.

Hartwig brought an action for personal injuries arising out of a slip and fall which occurred on Zacky’s premises. Hartwig also filed a workers’ compensation claim. The compensation carrier engaged attorney James Emerson to represent it, paid benefits to Hartwig in the total sum of $88,814.23, and intervened in Hartwig’s lawsuit. Shortly before trial, the compensation carrier assigned its lien claim to Zacky, in exchange for a payment of $30,000 from Zacky, and was dismissed from the case. Hartwig and Zacky were the only participants at trial. The jury returned a verdict in favor of Hartwig and against Zacky in the net amount of $112,500.

Subsequently, Hartwig moved for an order under section 3856 awarding him attorney…