Crampton

In this appeal we consider an employee’s entitlement to attorney fees under Labor Code section 3856, subdivision (b), and the interplay of that statute with Code of Civil Procedure section 1141.21. The first statute authorizes the recovery of litigation expenses and attorney fees when an injured employee alone prosecutes an action against a third party tortfeasor while the second statute imposes penalties for the failure to recover a more favorable judgment upon a trail de novo following judicial arbitration.

This case, centering on attorney fees provisions under the workers’ compensation statute, involves a plaintiff who did not obtain a net recovery in his lawsuit because of a lien for benefits paid by his employer but nonetheless asserts entitlement to costs and fees. The trial court found that although plaintiff James Crampton was the prevailing party in his suit against the negligent third party, defendant Yasuo Takegoshi, an award of costs and attorney fees to plaintiff was precluded by Code of Civil Procedure section 1141.21. We disagree and shall reverse.

Factual and Procedural Background

Plaintiff, an employee of Toscana Baking Company/Colombo Baking Company…