OPINION

BEDSWORTH, J. —

Linda Arneson worked for Pacific Mortgage,1 partly on salary, partly on commission. After she left Pacific in February 2013, she claimed she was owed commissions for, among other things, certain work done by a fellow employee as part of her team. Representing herself, she filed a wage claim with the state Labor Commissioner, and, in October 2013, obtained an award of approximately $29,500. Pacific timely filed an appeal to the Orange County Superior Court, and timely filed a bond guaranteeing Arneson's award. The appeal prompted Arneson to seek legal counsel in mid-December 2013. Her counsel substituted into the case on January 10, and six days later the court scheduled a pretrial conference for early March 2014, and the appeal itself for late March. In early February, Arneson's new counsel did some very effective saber rattling by serving Pacific notice that Arneson was reserving the right to present claims beyond just unpaid commissions at the scheduled hearing on the appeal, such as violations of various Labor Code sections and even fraud and negligent misrepresentation.2 Pacific concluded that fighting potential new claims was not the better part of valor and, in late February, withdrew its appeal with prejudice. Pacific then paid the Labor Commission award, plus accrued interest.

Which brings us to what this case is really about: Arneson's counsel's claim for attorney fees. In early March 2014, Arneson's counsel filed a motion for attorney fees and costs.3 The trial court denied all fees to Arneson on the theory that there must be a court award under Labor Code section 98.24 before a party can collect its fees. And since Pacific had nixed the possibility of any court award by withdrawing its appeal, no fees could be awarded.

The trial judge based her decision on portions of Arias v. Kardoulias (2012) 207 Cal.App.4th 1429 [144 Cal.Rptr.3d 599] (Arias). Arias was a case in which an employee, apparently thinking her award of some $6,300 from the commission was insufficient, appealed her award, but the employer pointed out the appeal was not timely, and so got it dismissed. (Id. at pp. 1433-1434.) Then the employer sought fees under section 98.2, subdivision (c). The employer was successful at the trial level, but the award was reversed on appeal. The Arias court held that it was not enough that the employer had obtained a procedural dismissal of the appeal, because such a procedural dismissal could not be equated with a superior court determination of the merits. (See Arias, supra, 207 Cal.App.4th at p. 1438.) The court noted that the employee was being hit with the employer's fees as if she had "no right to recover" her $6,300 in unpaid wages in the first place, which of course was error. (Ibid.) The procedural dismissal "only precluded" her obtaining a better result, because the employer still remained liable for the $6,300. (Ibid.)

After reading Arias, the trial judge stated she thought the same logic should apply to employer appellants as applied to employee appellants: If there was no court award on the merits, fees could not be awarded. We disagree.

The error stems from a misconstruction of this sentence, added to subdivision (c) in 2003: "An employee is successful if the court awards an amount greater than zero." The sentence was added to section 98.2 in 2003. Before that, it only read: "If the party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney's fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal." (See Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345, 357, fn. 6 [127 Cal.Rptr.2d 516, 58 P.3d 367] (Rae-Venter).) Construing section 98.2 without the "employee is successful" sentence, the Rae-Venter court held that an employee could indeed be liable for an employer's fees incurred in prosecuting a section 98.2 appeal if the employee did not win in the trial court a judgment "more favorable" than the "administrative award from which the appeal was taken." (29 Cal.4th at p. 370.) In doing so, the Rae-Venter court invoked the same goose-gander need for symmetry in section 98.2 that the trial court here did.5

But the Legislature rejected the Rae-Venter court's quest for symmetry in section 98.2 the very next year. The Legislature added the "employee is successful" sentence to subdivision (c) to make clear that an employee was still successful in the appeal even if the employee ended up with a reduced award—as long as it was not zero. (See Arias, supra, 207 Cal.App.4th at pp. 1435-1436 [giving history of legislative overturn of Rae-Venter].)6

In adding the "employee is successful" sentence in 2003, the Legislature certainly never intended to give employers a chance to whipsaw employees by filing section 98.2 appeals and then withdrawing them. Such a reading of the statute turns the basic purpose of the 2003 amendment on its head. It incentivizes employers to file frivolous appeals and then withdraw them at the last minute so as to inflict gratuitous legal costs on an employee who has been otherwise successful at the Labor Commission level.7

The reading of section 98.2 which would preclude fees to a substantively successful responding employee—successful because the employer threw in the towel just before the fight—not only fails the test of legislative intent, it fails textually as well.

Textually, Pacific's logic rests entirely on the word "court" in the sentence added in 2003. Pacific reads the sentence to say: "An employee is only successful if a trial court makes a determination on the merits of the appeal and the trial court also awards the employee an amount greater than zero." On its face, however, the 2003 amendment only says: "Here is one way the employee can be successful." To make it exclusive requires insertion of a word ("only" or some synonym) the Legislature did not write.

In fact, our non-exclusive reading of the statute finds support in the surrounding text of section 98.2. We have quoted subdivision (c) and the relevant surrounding text, namely subdivisions (b), (d) and (e) in footnote 4 above. The italicized words in the quotation demonstrate two major points about the scheme as a whole: (1) If an employer's appeal is withdrawn, the employee has already been successful in terms of the appeal because the employee gets to collect the compensation award almost immediately. (2) Alternatively, if the employer never appeals in the first place, the employee is successful because he or she still obtains an enforceable court judgment against the employer. To say, then, that an employee is not "successful" under subdivision (c) when an employer withdraws its section 98.2 appeal is nonsense. The employee gets to keep the money he or she won at the administrative level as if the employee had completely prevailed in a court trial.

The order denying fees is reversed, and the matter remanded for the trial court to ascertain the reasonable fees incurred by Arneson to defend employer Pacific's aborted appeal. Arneson will recover her costs in this appeal as well.

Rylaarsdam, Acting P. J., and Aronson, J., concurred.