Section 3856 Of Chapter 5. Subrogation Of Employer From California Labor Code >> Division 4. >> Part 1. >> Chapter 5.
3856
. In the event of suit against such third party:
(a) If the action is prosecuted by the employer alone, the court
shall first order paid from any judgment for damages recovered the
reasonable litigation expenses incurred in preparation and
prosecution of such action, together with a reasonable attorney's fee
which shall be based solely upon the services rendered by the
employer's attorney in effecting recovery both for the benefit of the
employer and the employee. After the payment of such expenses and
attorney's fees, the court shall apply out of the amount of such
judgment an amount sufficient to reimburse the employer for the
amount of his expenditure for compensation together with any amounts
to which he may be entitled as special damages under Section 3852 and
shall order any excess paid to the injured employee or other person
entitled thereto.
(b) If the action is prosecuted by the employee alone, the court
shall first order paid from any judgment for damages recovered the
reasonable litigation expenses incurred in preparation and
prosecution of such action, together with a reasonable attorney's fee
which shall be based solely upon the services rendered by the
employee's attorney in effecting recovery both for the benefit of the
employee and the employer. After the payment of such expenses and
attorney's fee the court shall, on application of the employer, allow
as a first lien against the amount of such judgment for damages, the
amount of the employer's expenditure for compensation together with
any amounts to which he may be entitled as special damages under
Section 3852.
(c) If the action is prosecuted both by the employee and the
employer, in a single action or in consolidated actions, and they are
represented by the same agreed attorney or by separate attorneys,
the court shall first order paid from any judgment for damages
recovered, the reasonable litigation expenses incurred in preparation
and prosecution of such action or actions, together with reasonable
attorneys' fees based solely on the services rendered for the benefit
of both parties where they are represented by the same attorney, and
where they are represented by separate attorneys, based solely upon
the service rendered in each instance by the attorney in effecting
recovery for the benefit of the party represented. After the payment
of such expenses and attorneys' fees the court shall apply out of the
amount of such judgment for damages an amount sufficient to
reimburse the employer for the amount of his expenditures for
compensation together with any other amounts to which he may be
entitled as special damages under Section 3852.
(d) The amount of reasonable litigation expenses and the amount of
attorneys' fees under subdivisions (a), (b), and (c) of this section
shall be fixed by the court. Where the employer and employee are
represented by separate attorneys they may propose to the court, for
its consideration and determination, the amount and division of such
expenses and fees.