TIMOTHY L. SMITH, Plaintiff and Appellant, v. RAE-VENTER LAW GROUP, Defendant and Appellant, 29 Cal. 4th 345

Opinion BAXTER, J. “If an employer fails to pay wages in the amount, time, or manner required by contract or by statute, the employee has two principal options. The employee may seek judicial relief by filing an ordinary civil action against the employer for breach of contract and/or for the wages prescribed by statute. (Lab. Code, §§ 218, 1194.) Or the employee may seek administrative relief by filing a wage claim with the [California Labor Commissioner] pursuant to a special statutory scheme codified in sections 98 to 98.8,” commonly known as a Berman hearing. (Cuadra v.

Millan (1998) 17 Cal.4th 855, 858 [72 Cal.Rptr.2d 687, 952 P.2d 704], italics omitted.) Where the administrative remedy is pursued, both parties have the right to appeal the decision of the Labor Commissioner (commissioner) to the trial court. (Lab. Code, § 98.2, subd. (a).) In the event such an appeal is taken,

section 98.2, subdivision (c) (section 98.2(c)) provides that the court shall assess costs and reasonable attorney fees against an appellant who “is unsuccessful in the appeal.” The purpose of this fee-shifting provision is to discourage frivolous and meritless appeals from the commissioner’s decisions. We granted review to settle a conflict between this case and earlier reported decisions on the meaning and nature of the requirement that the appealing party be “unsuccessful in the appeal” in order for the fee-shifting provision to take effect.

The earlier cases, decided in the context of employer appeals but stating a rule that has been applied in both employer and employee appeals, hold that the fee-shifting provision becomes operative only when the judgment of the trial court completely eliminates the commissioner’s administrative award. (Cardenas v. Mission Industries (1991) 226 Cal.App.3d 952, 960 [277 Cal.Rptr. 247] (Cardenas); see also Triad Data Services, Inc. v.

Jackson (1984) 153 Cal.App.3d Supp. 1 [200 Cal.Rptr. 418] (Triad).) The Court of Appeal below rejected that test, concluding instead - that a party (either employer or employee) who seeks review of a commissioner’s award is successful in the appeal when the resulting judgment is more favorable to that party than was the administrative award from which the appeal was taken. We conclude that the rationale of the Court of Appeal’s decision is substantially sound but that the judgment must be reversed to modify the disposition. The construction of

section 98.2(

c) that the Court of Appeal adopted (comparison of the resulting judgment with the administrative award from which the appeal was taken to determine whether the appealing party was unsuccessful for fee-shifting purposes) represents a clear break from the construction given the statute in Triad and Cardenas (fee-shifting provision becomes operative only when the judgment of the trial court completely eliminates the commissioner’s administrative award). This latter standard appears to have been uniformly applied until the Court of Appeal’s decision in this case.

Although the general rule is that judicial decisions are to be given retroactive effect, there is a recognized exception when a decision changes a settled rule on which the parties below have relied. (See, e.g., Brennan v. Tremco Inc. (2001) 25 Cal.4th 310, 318 [105 Cal.Rptr.2d 790, 20 P.3d 1086]; Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 45 [283 Cal.Rptr. 584, 812 P.2d 931]; Woods v.

Young (1991) 53 Cal.3d 315, 329-331 [279 Cal.Rptr. 613, 807 P.2d 455].) Because plaintiff in this case, and perhaps others similarly situated, relied on the rule announced in Triad and Cardenas in electing to appeal the commissioner’s award to the trial court, our holding parting company with that rule will be applied prospectively only to those appeals from the commissioner’s decisions filed in the trial court after the date this decision becomes final.

Factual and Procedural Background The Court of Appeal found the following facts, most of which are drawn from the record of the trial de novo, relevant to the issues raised on appeal. Rae-Venter Law Group (RVLG), a small law firm specializing in biotechnology patent law, was founded in September 1995 by Attorney Barbara Rae-Venter, who was the firm’s sole shareholder. Timothy L. Smith, then a recent law school graduate with a Ph.D. in molecular biology, joined RVLG at its inception as an associate attorney. Smith resigned his employment with RVLG one year later, in September 1996.

During that year, he and RaeVenter were the only attorneys at RVLG. In his letter of resignation, Smith asked RVLG to pay him for four weeks of accrued vacation time and to reimburse him for certain business expenses and for health insurance. RVLG responded with a written memorandum in which it disputed both Smith’s claim for vacation wages and his business expense claim. RVLG did reimburse Smith for health insurance premiums, as demanded. Unhappy with RVLG’s resolution of his demands, Smith filed a wage claim with the Department of Labor Standards Enforcement (i.e., the commissioner).

In October 1996, the commissioner gave RVLG notice of Smith’s claims. That notice repeated Smith’s claims for vacation wages and for reimbursement of business expenses. In addition, Smith claimed entitlement to unpaid bonuses and reimbursement for a miscellaneous deduction taken from his final paycheck. Later, in June 1997, the commissioner filed a formal complaint on Smith’s behalf. Like the earlier notice, the complaint sought reimbursement for claimed business expenses and for the miscellaneous deduction from Smith’s final pay.

The complaint also repeated Smith’s earlier demand for vacation and bonus wages, although in somewhat higher amounts, and in addition included a new claim for reimbursement of periodic unemployment insurance deductions mistakenly deducted from Smith’s wages due to a payroll computer program error. The complaint also sought “waiting time” penalties and prejudgment interest. (§§ 203, 98.1.) In late August 1997, a Labor Commission hearing officer heard Smith’s complaint. On September 3, 1997, the hearing officer made an award to Smith totaling $8,878.57.

The award included $6,865.31 in wages, representing payment for four weeks of vacation together with reimbursement for the unemployment insurance deductions; statutory interest on those wages, which amounted to $632.94; and $1,380.32, the amount Smith sought for unpaid business expenses. The hearing officer denied Smith’s other claims, including his claim for $12,000 in bonuses. The hearing officer further determined that no waiting time penalties were due because a bona fide dispute existed between the parties regarding Smith’s wage claims.

Within 10 days, RVLG sent the commissioner a cashier’s check made payable to Smith for $8,878.57, the full amount of the award. One week later, on September 19, 1997, Smith filed his notice of appeal, seeking a trial de novo on his claims. Because Smith had appealed, the commissioner returned RVLG’s check. On February 5 and 6, 1998, a two-day court trial de novo was conducted in the Santa Clara County Superior Court.

In his trial brief, Smith listed his claimed damages, which included unpaid vacation and bonus wages, unreimbursed business expenses, and unauthorized deductions from his pay, plus interest on all of those amounts. He also sought statutory waiting time penalties. (§ 203.) At trial, both parties submitted testimonial and documentary evidence and written and oral argument.

On February 17, 1998, the court filed a memorandum of decision concluding Smith was entitled to payment for vacation wages and reimbursement both for the unemployment insurance deductions and for the unreimbursed business expenses, together with interest on all of those amounts from the date of his resignation. Like the commissioner, the court rejected Smith’s claims for $12,000 in bonuses, $411.54 for a miscellaneous deduction from his final paycheck, and $9,966.40 in waiting time penalties.

In short, the commissioner’s award and the judgment Smith recovered in the trial de novo were identical in all respects save one. The amounts awarded in each forum for vacation pay, reimbursement of business expenses, and reimbursement for the erroneous unemployment insurance deductions were identical. Smith’s remaining claims for merit bonuses, for reimbursement for the miscellaneous deduction taken from his final paycheck, and for statutory waiting time penalties were rejected in both forums.

The only difference between the administrative and judicial awards was that the trial court awarded Smith interest on the entire amount of its $8,245.63 judgment, whereas the commissioner at that time could award interest on the wage claim but not the claim for unreimbursed business expenses. The difference in the prejudgment interest awards in each forum was approximately $230. RVLG challenged the trial court’s decision to award Smith interest on his nonwage claims (the unreimbursed business expenses) and also made a posttrial motion for statutory attorney fees and costs under

section 98.2(c). In April 1998, the trial court issued a formal order after hearing. The court overruled RVLG’s objections to the memorandum of decision regarding prejudgment interest and denied RVLG’s motion for fees and costs on the ground that Smith’s appeal was successful because he had obtained a judgment in his favor. Judgment was entered on May 4, 1998. RVLG appealed from the posttrial order denying its motion for attorney fees and costs under

section 98.2(c). Smith cross-appealed from that part of the judgment denying him waiting time penalties. On Smith’s cross-appeal, the Court of Appeal determined that the question whether the trial court erred in denying Smith statutory waiting time penalties (§ 203) turned on the resolution of disputed factual issues. Under the applicable substantial evidence standard of review (see Nordquist v.

McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 561 [38 Cal.Rptr.2d 221]; Cardenas, supra, 226 Cal.App.3d at pp. 958-959), the court found that substantial evidence supported the trial court’s findings that RVLG had acted in good faith in disputing Smith’s claims for vacation pay, and in not offering to reimburse him sooner for the unemployment insurance deductions mistakenly deducted from his paycheck. The Court of Appeal therefore affirmed that portion of the trial court’s judgment denying Smith waiting time penalties. On RVLG’s appeal from the denial of its motion for fees and costs under

section 98.2(c), the Court of Appeal concluded that plaintiff failed to show he was successful in the appeal because the commissioner’s award and the trial court’s judgment were identical in dollar amount and in elements of damage, notwithstanding that the award did not include prejudgment interest on plaintiff’s nonwage claims and the judgment did. The court held that because the purpose of

section 98.2(

c) is to discourage meritless appeals of the commissioner’s awards, the party seeking review should be deemed unsuccessful in the appeal unless the resulting judgment is more favorable to that party than was the administrative award. With specific regard to Smith’s appeal, the Court of Appeal determined that success in such an employee appeal requires some incremental improvement over the commissioner’s award in order to avoid implementation of the fee-shifting provision.

The court further held that success in the trial de novo should be assessed after excluding costs or damages that result solely from continuation of the litigation on appeal. The Court of Appeal reversed and remanded with directions to the trial court to redetermine whether plaintiff was “unsuccessful in the appeal” within the meaning of

section 98.2(

c) as thus construed. We granted review to settle the conflict between this case and earlier reported decisions (Triad, supra, 153 Cal.App.3d Supp. 1; Cardenas, supra, 226 Cal.App.3d 952) on the meaning and nature of the requirement that the appealing party be found “unsuccessful in the appeal” in order for the fee-shifting provision to become operative. Discussion Fee-shifting provision (§ 98.2(c)) RVLG urged on appeal that it was entitled to statutory attorney fees and costs. That in turn depends on whether Smith was “unsuccessful in [his] appeal” from the commissioner’s decision within the meaning of that term as used in

section 98.2(c). 1. Overview of Berman hearing procedure We begin with a brief review of the procedural context in which this dispute arose. As previously noted, under the Labor Code, “If an employer fails to pay wages in the amount, time or manner required by contract or by statute, the employee has two principal options.

The employee may seek judicial relief by filing an ordinary civil action against the employer for breach of contract and/or for the wages prescribed by statute. (§§ 218, 1194.) Or the employee may seek administrative relief by filing a wage claim with the commissioner pursuant to a special statutory scheme codified in sections 98 to 98.8.” (Cuadra v. Millan, supra, 17 Cal.4th at p. 858, disapproved on another ground in Samuels v.

Mix (1999) 22 Cal.4th 1, 16, fn. 4 [91 Cal.Rptr.2d 273, 989 P.2d 701].) The commissioner, who is Chief of the Division of Labor Standards Enforcement (§21), has broad authority to investigate employee complaints and to conduct hearings in actions “to recover wages, penalties, and other demands for compensation . . . .” (§ 98, subd. (a).) Recently, in Post v.

Palo/Haklar & Associates (2000) 23 Cal.4th 942, 946-948 [98 Cal.Rptr.2d 671, 4 P.3d 928], we summarized the key statutory procedures that govern wage order claims filed with the commissioner: “The commissioner may investigate complaints; his or her powers include the right to make inspections, subpoena witnesses and documents, and conduct examinations of witnesses. (See Lab.

Code, §§ 74, 92.) Within 30 days of the filing of a complaint, the commissioner must notify parties as to whether he or she will take further action. (Id., § 98, subd. (a).) The statute provides for three alternatives: the commissioner may either accept the matter and conduct an administrative hearing (see id., §§ 98-98.2), prosecute a civil action for the collection of wages and other money payable to employees arising out of an employment relationship (see id., § 98.3), or take no further action on the complaint. (Id., § 98, subd. (a).) “If the commissioner decides to accept the matter and conduct an administrative hearing—commonly known as a ‘Berman hearing’ after the name of its sponsor, then Assemblyman Howard Berman—he or she must hold the hearing within 90 days, although he or she has discretion to ‘postpone or grant additional time before setting a hearing if the [commissioner] finds that it would lead to an equitable and just resolution of the dispute.’ (Lab.

Code, § 98, subd. (a).) “Labor Code

section 98, subdivision (a), expressly declares the legislative intent that hearings be conducted ‘in an informal setting preserving the right of the parties.’ The Berman hearing procedure is designed to provide a speedy, informal, and affordable method of resolving wage claims. (Cuadra v.

Millan, supra, 17 Cal.4th at p. 858.) As we explained in Cuadra, ‘the purpose of the Berman hearing procedure is to avoid recourse to costly and time-consuming judicial proceedings in all but the most complex of wage claims.’ (Id. at p. 869.) “The commissioner is required to determine all matters arising under his or her jurisdiction, including questions concerning the employment status of the claimant. (Lab. Code, § 98, subd. (a); see also Resnik v.

Anderson & Miles (1980) 109 Cal.App.3d 569, 572 [167 Cal.Rptr. 340] [‘Labor Code sections 96 and 98, subdivision (a), expressly allow the [commissioner] to take assignment of employee claims with the authority to resolve all matters within its jurisdiction.’].) Indeed, as a predicate for awarding a claim for unpaid wages, the commissioner must necessarily determine that the claimant was an employee. (1 Wilcox, Cal.

Employment Law (2000) § 1.04[1] [a], p. 1-9 [‘An employment relationship must exist in order for the California wage orders or the provisions of the Labor Code governing wages . . . to be applicable.’ (Fn. omitted.)].) “Within 15 days after the Berman hearing is concluded, the commissioner must file a copy of his or her order, decision, or award and serve notice thereof on the parties. (Lab. Code, § 98.1.) The order, decision, or award must include a

summary of the hearing and the reasons for the decision, and must advise the parties of their right to appeal. (Ibid.) “Within 10 days after service of notice, the parties may seek review by filing an appeal to the municipal or superior court ‘in accordance with the appropriate rules of jurisdiction, where the appeal shall be heard de novo.’ (Labor Code, § 98.2, subd. (a).) The timely filing of a notice of appeal forestalls the commissioner’s decision, terminates his or her jurisdiction, and vests jurisdiction to conduct a hearing de novo in the appropriate court. (Pressler v. Donald L.

Bren Co. (1982) 32 Cal.3d 831, 835 [187 Cal.Rptr. 449, 654 P.2d 219].) If no party takes an appeal, the commissioner’s decision will be deemed a judgment, final immediately and enforceable as a judgment in a civil action. (Lab. Code, § 98.2, subd. (a); see generally 1 Wilcox, Cal. Employment Law, supra, §§ 5.10 to 5.19, pp. 5-18 to 5-52.) “Although denoted an ‘appeal,’ unlike a conventional appeal in a civil action, hearing under the Labor Code is de novo. (Lab. Code, § 98.2, subd. (a).) ‘ “A hearing de novo [under Labor Code

section 98.2] literally means a new hearing,” that is, a new trial.’ (Pressler v. Donald L. Bren Co., supra, 32 Cal.3d at p. 835.) The decision of the commissioner is ‘entitled to no weight whatsoever, and the proceedings are truly “a trial anew in the fullest sense.” ’ (Sales Dimensions v. Superior Court (1979) 90 Cal.App.3d 757, 763 [153 Cal.Rptr. 690].) The decision of the trial court, after de novo hearing, is subject to a conventional appeal to an appropriate appellate court. (1 Wilcox, Cal.

Employment Law, supra, § 5.18[2] [a], p. 5-46.) Review is of the facts presented to the trial court, which may include entirely new evidence. (See Nordquist v. McGraw-Hill Broadcasting Co.[, supra,] 32 Cal.App.4th 555, 561 . . . ; 1 Wilcox, Cal. Employment Law, supra, § 5.18[3], p. 5-49.)” (Post v. Palo/Haklar & Associates, supra, 23 Cal.4th at pp. 946-948.)

Section 98.2(

c) provides for an award of attorney fees and costs against a party who appeals the commissioner’s award through a trial de novo in the superior court and “is unsuccessful in the appeal.” (§ 98.2(c).) Our task then is to construe this fee-shifting provision, which each party interprets differently, particularly, as here, in the context of an employee’s appeal of a commissioner’s award partially in his or her favor. Because the issue involves the proper

interpretation of a statute and its application to undisputed facts, we do so through independent review. (Cf. Californians for Population Stabilization v. Hewlett-Packard Co. (1997) 58 Cal.App.4th 273, 294 [67 Cal.Rptr.2d 621] [“The

interpretation of this attorney’s fees statute [§ 218.5] and its application to the circumstances in this case are questions of law, subject to independent review on appeal”].) 2. RVLG’s entitlement to attorney fees and costs

Section 98.2(

c) provides that the trial court “shall” assess costs and reasonable attorney fees against an appellant who is unsuccessful in the appeal. As used in the Labor Code, “shall” is mandatory. (§15; see Morris v. County of Marin (1977) 18 Cal.3d 901, 908 [136 Cal.Rptr. 251, 559 P.2d 606] [construing § 3800].) The parties disagree on whether Smith was unsuccessful in the appeal, as that term is used in the fee-shifting statute.

Smith asserts that his appeal was successful because he won a judgment in the trial de novo; he argues it is irrelevant whether the trial court judgment reflects an improvement over the commissioner’s award. Smith further urges that, in any event, his judgment is more favorable than the commissioner’s award because it includes interest (approximately $230) on his reimbursable business expense claims.

RVLG disagrees and asserts that the Court of Appeal correctly determined that success in the appeal requires the appellant to achieve a more favorable result at trial, something the Court of Appeal found Smith failed to do in this case, notwithstanding the award of interest on the nonwage items included in the trial court’s judgment. a. Legislative intent and legislative history behind

section 98.2(c) “Initially, ‘[a]s in any case of statutory

interpretation, our task is to determine afresh the intent of the Legislature by construing in context the language of the statute.’ (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1159 [278 Cal.Rptr. 614, 805 P.2d 873].) In determining such intent, we begin with the language of the statute itself. (Rojo v. Kliger (1990) 52 Cal.3d 65, 73 [276 Cal.Rptr. 130, 801 P.2d 373].) That is, we look first to the words the Legislature used, giving them their usual and ordinary meaning. (City of Santa Cruz v.

Municipal Court (1989) 49 Cal.3d 74, 90 [260 Cal.Rptr. 520, 776 P.2d 222].) ‘If there is no ambiguity in the language of the statute, “then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.” ’ (Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268 [36 Cal.Rptr.2d 563, 885 P.2d 976].)” (People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 192 [96 Cal.Rptr.2d 463, 999 P.2d 686].)

Section 98.2(

c) does not expressly define when or under what circumstances a party is “unsuccessful in the appeal” from a commissioner’s decision and award. RVLG urged below that the statutory language on its face has a plain and unambiguous meaning, but the Court of Appeal disagreed, observing that the very fact that courts have split on the issue and reached contradictory conclusions regarding the

interpretation and meaning of

section 98.2(c) (compare Triad, supra, 153 Cal.App.3d at pp. Supp. 13-15 (maj. opn.) with id. at pp. Supp. 28-33 (dis. opn. of Foster, P. J.)) itself suggests the relevant statutory language is ambiguous. We agree with the Court of Appeal. This is a case in which “the language of the relevant statutes does not provide a ready answer.” (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1205 [31 Cal.Rptr.2d 776, 875 P.2d 1279].) Accordingly, we must determine the meaning of the phrase “unsuccessful in the appeal” as it appears in

section 98.2(c), giving due consideration to its statutory context. (See Hodges v. Superior Court (1999) 21 Cal.4th 109, 114 [86 Cal.Rptr.2d 884, 980 P.2d 433].) To this end, we examine the legislative purpose in enacting the fee and cost-shifting provision. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 [241 Cal.Rptr. 67, 743 P.2d 1323].) We can also look to the legislative history of the enactment (id. at pp. 1386-1387; Californians for Population Stabilization v.

Hewlett-Packard Co., supra, 58 Cal.App.4th at p. 295), which further demonstrates that its purpose is to discourage frivolous and nonmeritorious appeals from the commissioner’s decisions. Recently, in Lolley v. Campbell (2002) 28 Cal.4th 367 [121 Cal.Rptr.2d 571, 48 P.3d 1128], we construed

section 98.2(

c) to determine whether a trial court may assess attorney fees against an employer who unsuccessfully appeals an administrative order to pay wages if the employee cannot afford counsel and is represented without charge by the commissioner. We observed that the legislative purpose behind

section 98.2 (

c) is to “discourag[e] unmeritorious appeals of wage claims, thereby reducing the costs and delays of prolonged disputes, by imposing the full costs of litigation on the unsuccessful appellant. (Dawson v. Westerly Investigations, Inc. (1988) 204 Cal.App.3d Supp. 20, 24 [251 Cal.Rptr. 633] [the purpose of

section 98.2, subdivision (

c) is ‘to discourage meritless and unwarranted appeals by assessing costs and attorneys’ fees against unsuccessful appellants’ (italics omitted)]; see also Nordquist v. McGraw-Hill Broadcasting Co. (1995) 32 Cal.App.4th 555, 575 . . . [these provisions were intended to provide ‘disincentives to discourage meritless and unwarranted appeals’].) Discouraging meritless appeals is consonant with the general purpose of

section 98 et seq., noted above, to ‘provide a speedy, informal, and affordable method of resolving wage claims.’ (Cuadra v. Millan, supra, 17 Cal.4th 855, 858.)” (Lolley, supra, 28 Cal.4th at p. 376; accord, California Chamber of Commerce v. Simpson (C.D.Cal. 1985) 601 F.Supp. 104, 108 [“This provision clearly is intended to discourage appeal from the Labor Commissioner’s award . . . .”].) The Court of Appeal granted RVLG’s request for judicial notice of documents bearing on the legislative history of

section 98.2(c), which was first added to the Labor Code in 1980 as subdivision (

b) by Senate Bill No. 1397 (1979-1980 Reg. Sess.). Among the documents the court judicially noticed were the analysis of Senate Bill No. 1397 prepared for the Assembly Committee on Labor, Employment, and Consumer Affairs, dated June 17, 1980, and the Enrolled Bill Memorandum to the Governor regarding Senate Bill No. 1397, dated July 11, 1980. As the court observed, both of those documents state: “The purpose of this bill is to reduce frivolous and non-meritorious appeals of the Labor Commissioner’s decisions regarding payment of wages.” As past cases have recognized, and the legislative history of

section 98.2(

c) confirms, the purpose of the fee-shifting provision is to promote the finality of the commissioner’s awards. The statute discourages unmeritorious appeals to the courts by requiring that the unsuccessful appellant shoulder respondent’s costs in defending the appeal. As in the Court of Appeal, Smith urges us to instead focus on important “countervailing” policies in the Labor Code, particularly the overriding policy requiring the prompt payment of wages. Of course “the prompt payment of wages due an employee is a fundamental public policy of this state” (Gould v.

Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1147 [37 Cal.Rptr.2d 718], citing Pressler v. Donald L. Bren Co., supra, 32 Cal.3d at p. 837), and the Legislature clearly had that important public policy in mind in enacting various provisions of the Labor Code. (Gould v. Maryland Sound Industries, Inc., supra, at p. 1147; see, e.g., §§ 201-203, 216.) But while various provisions of the Labor Code indisputedly have employee protection and the prompt payment of wages as their paramount purpose, we agree with the Court of Appeal that the fee-shifting provisions of

section 98.2(

c) are not among them. Once again, the specific purpose behind those provisions is the promotion of the finality of the commissioner’s decisions and awards by discouraging frivolous appeals to the courts by either party. In any case, as the Court of Appeal recognized below, the policy promoting the prompt payment of wages was vindicated in this case. Once the commissioner determined what Smith was owed, RVLG promptly tendered payment in full in compliance with the statutory requirement, but Smith refused the payment and instead sought a trial de novo in the superior court.

Thus, the situation in this case is not one in which the employer “further delayed the wages due the [employee]” by taking an appeal from the commissioner’s award. (Triad, supra, 153 Cal.App.3d at p. Supp. 14.) To the contrary, in the factual context of this case, there is no conflict between the policy requiring the prompt payment of wages and the policy of promoting the finality of the commissioner’s awards through the fee-shifting provision here in issue.

Smith also renews his assertion in the Court of Appeal that “the public policy underlying the statute is protection of the employee, not the employer.” Based on that assertion, he urged the Court of Appeal to find that the test by which a party is found “unsuccessful in the appeal” under

section 98.2(

c) may vary “depending on whether the party seeking judicial review is the employer or the employee.” If the employee appeals the award to the courts, the appeal will not be deemed unsuccessful as long as he or she obtains a judgment, whether more or less than the administrative award—in theory, even a judgment of one dollar. In contrast, if the employer appeals, the appeal will be deemed unsuccessful unless the employer succeeds in overturning the award in its entirety. (See Cardenas, supra, 226 Cal.App.3d at p. 960.) We disagree.

As the Court of Appeal observed, the fee-shifting provision in question “neither compels nor warrants the unequal treatment of employers and employees.” That conclusion follows from the plain language of

section 98.2(c), which makes no explicit distinction between employee and employer appeals but simply authorizes the shifting of fees and costs to the unsuccessful “party filing the appeal.” We recognized this in Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 997 [73 Cal.Rptr.2d 682, 953 P.2d 858], wherein we observed that “[b]ecause Labor Code

section 98.2 addresses the ability of both sides [employers and employees alike] to recover their costs, it comprises an express exception to [Code of Civil Procedure]

section 1032 [, subdivision] (b) [which sets forth the general rule that prevailing parties shall recover their costs].” Moreover, as the Court of Appeal further observed, through “recent amendments to

section 98.2, the Legislature imposed certain bonding requirements that are applicable only to employer appeals. (§ 98.2, subd. (b); see Stats. 2000, ch. 876[,] § 2.) Yet in the very next paragraph of the statute, which contains the cost-shifting provisions at issue here, the Legislature made no distinction between employers and employees. That omission suggests a legislative intent to apply this cost-shifting provision evenhandedly, to employers and employees alike. Evenhanded application is consistent with the statute’s policy. (Cf. Bank of San Pedro v.

Superior Court (1992) 3 Cal.4th 797, 804-805 [12 Cal.Rptr.2d 696, 838 P.2d 218] [‘Not to require an undertaking in this case would further thwart the policy of [Code of Civil Procedure]

section 998 by creating an anomalous disparity between plaintiffs and defendants. . . . An evenhanded application of the requirement for an undertaking on appeal best effectuates the policy of encouraging settlements under

section 998.’]; see also [Triad], supra, 153 Cal.App.3d at p. Supp. 29 (dis. opn. of Foster, P. J.) [‘Nothing in the statute or the legislative history suggests that the Legislature in enacting

section 98.2, subdivision [(c)], intended that it operate unilaterally against employers or that it was designed to serve the purpose of preventing the withholding of “just wages due a discharged or terminated employee.” To the contrary, the apparent purpose of it is to give force and effect to the Labor Commissioner’s award by discouraging either party from appealing from the award on other than meritorious grounds.’ (Fn. omitted.)].)” In sum, the purpose and intent behind

section 98.2(

c) is to discourage frivolous and unmeritorious appeals from the commissioner’s awards, regardless of whether they are taken by employers or employees. With that legislative purpose in mind, we next briefly examine two statutory fee-shifting schemes, which RVLG urged the Court of Appeal to find analogous to

section 98.2(c), to see if those statutes can shed any light on our inquiry into the manner in which the Legislature intended

section 98.2(

c) to operate. b. Analogous fee-shifting statutes The statutory scheme governing judicial arbitrations contains a one-sided fee-shifting provision similar to that found in

section 98.2(c). (See Code Civ. Proc., § 1141.10 et seq.; see generally Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2002) ch. 13, Judicial Arbitration and Mediation, pp. 13-1 to 13-81.) Like a wage order claimant unsatisfied with a commissioner’s award, a party who is dissatisfied with a judicial arbitration award may opt for a trial de novo. (Code Civ. Proc., § 1141.20.) In the de novo proceedings following judicial arbitration, as in a trial de novo following appeal of a commissioner’s award, the case is tried “as though no arbitration proceedings had occurred.” (Cal.

Rules of Court, rule 1616(c); Code Civ. Proc., § 1141.25; Weber v. Kessler (1981) 126 Cal.App.3d 1033, 1036-1037 [179 Cal.Rptr. 299].) Under the fee- and cost-shifting provision of the judicial arbitration statute, a party who requests a trial de novo and fails to obtain a judgment “more favorable in either the amount of damages awarded or the type of relief granted” must pay the opposing party’s costs and attorney fees to the extent authorized by contract or statute. (Code Civ.

Proc., § 1141.21, subd. (a).) “The trial de novo provides the losing party with yet another chance to present its case, but that party also assumes a risk by requesting the trial: if the judgment for the party electing the trial de novo is not more favorable, either in the amount of damages awarded or the type of relief sought, than was the arbitration award, that party must reimburse the county for the compensation paid to the arbitrator, as well as paying the opposing party the costs it has incurred as a result of the trial.” (Weber v.

Kessler, supra, 126 Cal.App.3d at p. 1036.) The fee-shifting provision of the judicial arbitration statute is therefore intended to “encourage parties to accept reasonable arbitration awards,” and “to discourage trials de novo” (Phelps v. Stostad (1997) 16 Cal.4th 23, 29 [65 Cal.Rptr.2d 360, 939 P.2d 760]), much like the fee and cost-shifting provision of

section 98.2(

c) is intended to discourage frivolous appeals from the commissioner’s awards. “The Legislature has clearly enacted a policy of encouraging the parties to accept arbitration awards. The legislative policy promotes judicial economy in a world of limited courtroom space and limited tax dollars.” (Bhullar v. Tayyab (1996) 46 Cal.App.4th 582, 589-590 [54 Cal.Rptr.2d 17].) The legislative scheme governing statutory settlement offers also contains a one-sided fee-shifting provision similar in many respects to that found in

section 98.2(c). If a plaintiff does not accept a defendant’s statutory settlement offer and then “fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer.” (Code Civ. Proc., § 998, subd. (c)(1).) “As recognized in numerous California decisions, the clear purpose of [Code of Civil Procedure]

section 998 . . . is to encourage the settlement of lawsuits prior to trial, and penalize litigants who fail to accept what, in retrospect, is determined to have been a reasonable settlement offer.” (Bodell Construction Co. v. Trustees of Cal. State University (1998) 62 Cal.App.4th 1508, 1518 [73 Cal.Rptr.2d 450], fn. omitted, citing Bank of San Pedro v. Superior Court, supra, 3 Cal.4th at p. 804.) As the Court of Appeal in this case reasoned, the fee- and cost-shifting provisions of Code of Civil Procedure sections 998 and 1141.21 are each intended to discourage unnecessary trials in much the same way that

section 98.2(

c) is designed to discourage unmeritorious appeals of the commissioner’s decisions to the courts. Like

section 98.2(c), the judicial arbitration fee and cost-shifting provision affords a party dissatisfied with his or her arbitration award the option of a trial de novo, but if the ensuing judgment is not more favorable than was the arbitration award, the court shall order that party to pay the other side’s fees and costs. (Code Civ.

Proc., § 1141.21, subd. (a).) Notably, in applying the “more favorable judgment” standard, even though a party appealing an arbitration award obtains a trial de novo, the court must compare the award to the ultimate judgment to determine the nonappealing party’s entitlement to fees and costs. (Weber v. Kessler, supra, 126 Cal.App.3d at p. 1036.) Similarly, when a plaintiff rejects a defendant’s statutory settlement offer and then fails to obtain a more favorable judgment at trial, the plaintiff may not recover postoffer costs and becomes liable for the defendant’s costs from the time of the offer. (Code Civ.

Proc., § 998, subd. (c)(1).) Smith argued in the Court of Appeal that these three statutes cannot be validly compared because the Legislature failed to use precisely the same language in

section 98.2(

c) as it did in the Code of Civil Procedure sections. He renews the point in this court. It is true that the Legislature employed different terminology in the judicial arbitration and statutory settlement cost-shifting schemes. Under those statutes, cost shifting is triggered when the de novo trial court judgment is “more favorable” than the rejected settlement offer or arbitration award (Code Civ. Proc., §§ 998, subds. (c)-(e), 1141.21), whereas under

section 98.2(c), cost shifting is mandated when the party rejecting the commissioner’s award is “unsuccessful in the appeal.” Smith urged the Court of Appeal to invoke the “ ‘well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.’ ” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 725 [257 Cal.Rptr. 708, 771 P.2d 406], quoting Ford Motor Co. v.

County of Tulare (1983) 145 Cal.App.3d 688, 691 [193 Cal.Rptr. 511].) But, as the court reasoned, that principle is inapplicable here, for it applies only when the Legislature has intentionally changed or excluded a term by design (Ford Motor Co. v. County of Tulare, supra, 145 Cal.App.3d at p. 691), and it is only when different terms are used in parts of the same statutory scheme that they are presumed to have different meanings. (Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d at p. 725 [construing varying terminology in a single statute, Civ. Code, § 47].) We agree.

In this instance, it does not appear that the Legislature’s failure to use identical language in the judicial arbitration, statutory settlement and Labor Code fee-shifting provisions was either intentional or meaningful. Smith also points to another distinction between

section 98.2(

c) and the two Code of Civil Procedure fee-shifting provisions described above:

section 98.2(

c) makes the fee assessment mandatory, whereas Code of Civil Procedure sections 998 and 1141.21 allow for exceptions in the interest of justice. But

section 98.2(c)’s stricter mandatory fee-shifting provision is most likely attributable to the Legislature’s stronger interest in promoting the finality of the commissioner’s awards, given the correspondingly harsher disincentive to appeal them. It is difficult to see how this distinction between the fee-shifting provisions is availing to Smith’s cause. c. Relevant case law: Triad and Cardenas Smith next argues that merely winning a judgment in the trial de novo constitutes success in the appeal, and whether or not that judgment represents an improvement over or decrease in the commissioner’s award is irrelevant.

He relies on two decisions in support of his position: Triad, supra, 153 Cal.App.3d Supp. 1, and Cardenas, supra, 226 Cal.App.3d 952. RVLG disagrees and urges that success in an appeal from a commissioner’s decision requires a more favorable result at the trial de novo than at the administrative hearing. The Court of Appeal rejected the reasoning of Cardenas and Triad and adopted a “more favorable judgment” standard.

Triad was decided by the former appellate department of the Los Angeles Superior Court. (Triad, supra, 153 Cal.App.3d Supp. 1.) In that case the employee, a bookkeeper, was terminated less than three months after her employment status had been changed to a salaried employee pursuant to a written employment agreement. (Id. at p. Supp. 5.) She filed a complaint with the commissioner and ultimately won an award that included $2,275 “for wages or compensation” and $2,310 for “waiting time.” (153 Cal.App.3d at p.

Supp. 6.) The employer elected a trial de novo in the municipal court, where judgment was entered for the employee as follows—a reduced amount ($1,631) for “principal,” $1,000 for attorney fees, and $4,998 in treble punitive damages under

section 206, subdivision (b). (153 Cal.App.3d at p. Supp. 6.) The employer appealed to the former appellate department of the superior court, which court entered a new judgment striking the award of treble punitive damages, “substituting” in its stead the sum of $1,666 as waiting time penalties under

section 203, and otherwise affirming the award of attorney fees and costs to the nonappealing employee, even though the net judgment recovered by the employee in the trial de novo was less than she had recovered in the administrative hearing before the commissioner. (153 Cal.App.3d at p. Supp. 15.) In its appeal to the former appellate department of the superior court, the employer in Triad sought “to establish . . . success in the trial de novo by comparing the judgment issued by the trial court with the award or decision of the commissioner.” (Triad, supra, 153 Cal.App.3d at p.

Supp. 14.) Over a vigorous dissent, the Triad majority rejected the employer’s argument as without merit, concluding an employer seeking judicial review is “unsuccessful in the appeal” if trial de novo results in any judgment for the employee, even if it is lower than that which the commissioner originally awarded. As the Triad court put it: “the statutory language contained in

section 98.2, subdivision (b) [now (c)] of ‘unsuccessful in [the] appeal’, should be given the inverse meaning to that of ‘prevailing party’ which is well settled in this state. The prevailing party is the party in whose favor final judgment is rendered. [Citation.] ‘The general rule is that net recovery is the basis upon which attorneys’ fees are computed. [Citation.]’ [Citation.] We find that the defendant [employee] ‘prevailed,’ or, conversely, the plaintiff [employer] was ‘unsuccessful’ below. The trial judge properly granted attorney’s fees and costs to defendant [employee] pursuant to . . .

section 98.2.” (Triad, supra, 153 Cal.App.3d at p. Supp. 15.) In Cardenas, the Second District Court of Appeal, relying heavily on the majority decision in Triad, reached a similar conclusion.

In that case the commissioner had awarded the employee overtime pay, waiting time penalties, and interest. (Cardenas, supra, 226 Cal.App.3d at pp. 955-956.) The employer opted for a trial de novo in the superior court, which court rendered a judgment for the employee reducing the compensation awarded by the commissioner for overtime pay, affirming the awards of waiting time penalties and interest, and adding an award of statutory attorney fees. (Id. at p. 957.) On appeal, the employer contested the award of attorney fees, arguing that it was not “unsuccessful in the appeal” (§ 98.2(c)) for purposes of the fee statute “because the court’s award of overtime pay was less than that of the Labor Commissioner . . . .” (226 Cal.App.3d at pp. 959-960.) The Cardenas court rejected the employer’s argument, holding as follows: “Appeal to a court of the Labor Commissioner’s order is not an appeal in the usual sense; rather, it is a trial de novo. (. . . § 98.2 [, subd.] (a).) For an appellant to be considered the successful party when seeking judicial review of an award of the Labor Commissioner, the judgment of the trial court must completely eliminate the Labor Commissioner’s prior award. (See Triad Data Services, Inc. v.

Jackson [,supra,] 153 Cal.App.3d [at p. Supp. 14] [TO In the present case, the judgment of the trial court was not in favor of [the employer]. The court found against [the employer] on all the issues in this case. The fact that the amount of overtime wages awarded by the Labor Commissioner was reduced by the trial court is irrelevant. [The employee] was the prevailing party.” (Cardenas, supra, 226 Cal.App.3d at p. 960.) We first observe that Cardenas and Triad are factually distinguishable from the case before us since both decisions involved employer appeals.

As the Court of Appeal below observed, “This distinction carries significant practical consequences. Although [section 98.2(c)] does not distinguish between [employer and employee appeals], and although appeals by either party in theory may slow wage payments, only employer appeals involuntarily delay payment.

Even Smith acknowledges that an employee appeal ‘does not thwart the overriding policy interest in making an employer pay wages when due.’ To the extent that the reasoning of [Cardenas and Triad] derives from the fact that they were both employer appeals, their rationale is inapplicable here.” This distinction was not lost on the dissenting judge in Triad. After observing that

section 98.2, subdivision (

a) explicitly contemplates that either party may appeal a decision of the commissioner, and that the purpose of

section 98.2(

c) is to provide for fee shifting against either party who unsuccessfully seeks review of such a decision, be it the employer or the employee, the dissenting judge in Triad explained: “The majority’s

interpretation of [section 98.2(c)] would not accomplish this purpose. Under that

interpretation, an award of such sanctions against the employer is made to depend entirely upon whether in the trial de novo appeal the employee recovers any amount, no matter how small and no matter how much less than the award of the Labor Commissioner. In circumstances similar to the present case, in which the employer has appealed an admittedly unjustly high award, he is penalized for exercising his appeal rights by being compelled to pay the costs and attorneys’ fees of the employee whose recovery has been properly reduced.

In the converse circumstance, of an employee’s appeal, an equally unjust result would follow. An employee dissatisfied with an award might appeal and, after a trial de novo, recover no greater, or even a far lesser sum, but under the majority’s reasoning he would not be ‘unsuccessful in such appeal.’ The result of this reasoning is to penalize employers for taking meritorious appeals and to reward employees for taking unmeritorious ones.” (Triad, supra, 153 Cal.App.3d at p. Supp. 30 (dis. opn. of Foster, P.

J.).) Apart from the factual differences between employer and employee appeals, the Triad and Cardenas courts further erred in concluding that the commissioner’s decision must be entirely disregarded when applying the fee-shifting mandate of

section 98.2(c). As a practical matter, whether the party electing a trial de novo after the commissioner issues a decision and award is successful in that “appeal” cannot be determined without comparing the trial court’s judgment to the earlier administrative award from which the appeal was taken. On this point we again agree with the Court of Appeal below—the judicial arbitration statute provides an apt analogy: “In a trial de novo after judicial arbitration, the court ‘hears the evidence and makes its decision based on that evidence.

It is imperative in cases such as these that the trier of fact reach its decision independently and without any reference to the arbitrator’s findings . . . .’ (Weber v. Kessler, supra, 126 Cal.App.3d at p. 1036.) ‘However, in order to comply with [the cost-shifting provisions of Code of Civil Procedure]

section 1141.21 and insure that the costs of the arbitration and trial are borne by the proper party, the court must “refer” to the arbitrator’s findings at some point prior to entry of judgment.’ (Ibid.)'’ By parity of reasoning, the same logic applies to trials de novo following decisions and awards of the commissioner, in which trials the court hears the evidence anew, and must reach its decision based on that new evidence, with the decision of the commissioner “ ‘entitled to no weight whatsoever . . . ” (Post v. Palo/Haklar & Associates, supra, 23 Cal.4th at p. 948, quoting Sales Dimensions v.

Superior Court, supra, 90 Cal.App.3d at p. 763.) As the Court of Appeal below aptly observed, “the requirement of [a trial de novo] is satisfied as soon as the evidentiary proceedings end with a decision on the merits by the trial court. The de novo trial requirement [does not, in law or logic,] foreclose [] subsequent consideration of the commissioner’s decision for [the limited] purpose[] of determining success in the trial court [for cost and fee-shifting purposes under

section 98.2(c)].” Indeed, given the informal nature of a Berman hearing, the commissioner has no occasion to consider, much less award, attorney fees or other costs in the administrative proceeding in the first instance. As the Court of Appeal opined, “in order to comply with the mandate of

section 98.2[(c)] and to insure that the proper party bears, the costs of the de novo trial, the court must compare its judgment to the commissioner’s award in order to assess the appealing party’s success. To do otherwise [would] contraveneQ the statute’s purpose.” (Italics added.) As previously noted, the Triad court concluded that “the statutory language contained in [section 98.2(c)] of ‘unsuccessful in [the] appeal’, should be given the inverse meaning to that of ‘prevailing party’ which is well settled in this state.

The prevailing party is the party in whose favor final judgment is rendered. [Citation.]” (Triad, supra, 153 Cal.App.3d at p. Supp. 15.) The Cardenas court adopted Triad's reasoning, putting it in even terser terms: “For an appellant to be considered the successful party when seeking judicial review of an award of the Labor Commissioner, the judgment of the trial court must completely eliminate the Labor Commissioner’s prior award. (See Triad Data Services, Inc. v.

Jackson[, supra,] 153 Cal.App.3d Supp. 1, 14 . . . .)” (Cardenas, supra, 226 Cal.App.3d at p. 960.) In short, both the Triad and Cardenas courts went well beyond a mere holding that the commissioner’s findings must be disregarded when determining the appealing party’s success, for statutory fee and cost-shifting purposes, in a trial de novo following the commissioner’s decision and award. We find the very wording and nature of the rule adopted by those courts to be strong evidence that they were focusing primarily on the employer appeals before them when seeking to construe the language of

section 98.2(c). In suggesting that “the judgment of the trial court must completely eliminate the Labor Commissioner’s prior award,” the Cardenas court must have had as its principal focus the circumstance that, in the context of the employer appeal before it, unless the employer obtains a complete victory in the trial de novo, any resulting judgment for the employee, even a judgment of $1, will render the employee the “prevailing party” at trial and the employer liable for the employee’s fees and costs.

But of course the same harsh rule must be applied in employee appeals as well, because the statutory language itself makes no distinction between employer and employee appeals, and as we have explained, the legislative purpose behind

section 98.2(

c) is to discourage frivolous and meritless appeals from the commissioner’s decisions by either party. Hence, under the Triad/Cardenas test, in an employee appeal, as in the case now before us, unless the appealing employee loses every last dollar of the commissioner’s prior award, he or she will be deemed successful in the appeal. Put otherwise, the Triad/Cardenas courts’ construction of

section 98.2(

c) shields an appealing employee from virtually all risk of fee and cost shifting, because an employee appealing from the commissioner’s award is all but guaranteed some kind of judgment on appeal. On the other hand, it penalizes an employer who files a meritorious appeal and succeeds in substantially reducing the employee’s administrative award—only in the rare case, in which an employee’s award is reduced to zero, would an appealing employer be able to avoid liability for the employee’s attorney fees and costs in the de novo trial. As with the judicial arbitration and statutory settlement fee-shifting statutes,

section 98.2(

c) is designed to penalize appealing employers and employees who turn to the courts after rejecting what, in retrospect, was a reasonable commissioner’s award. (Cf. Bodell Construction Co. v. Trustees of Cal. State University, supra, 62 Cal.App.4th at p. 1518 [settlement offer].) We have shown that the legislative purpose behind

section 98.2(c)’s fee-shifting provision is to discourage frivolous and meritless appeals by either party from the commissioner’s decisions. As a practical matter, whether an appeal is unsuccessful for purposes of assigning fees and costs can only be determined with the benefit of hindsight by comparing the trial court’s judgment with the prior administrative award. There is no legal impediment to doing so.

The Cardenas/Triad test is at odds with each of these principles—it erroneously assumes comparison of the awards in each forum is prohibited as a matter of law; it encourages rather than discourages marginal employee appeals, because employees run little risk of liability for employer fees and costs in such appeals; and it discourages meritorious employer appeals, because employers who win a partial victory will still be liable for the employee’s fees and costs except for the rare case in which the employee’s award is reduced to zero. d.

Success in the trial de novo We conclude that the Court of Appeal below correctly construed

section 98.2(

c) as providing that, whether an employer or employee elects a trial de novo after the commissioner issues a decision and award, that party is “unsuccessful in the appeal,” and thereby liable for the other party’s fees and costs, unless the resulting trial court judgment is more favorable to the appealing party than was the administrative award from which the appeal was taken. Success in an appeal from a commissioner’s decision does not require a complete reversal of the earlier award. In so holding, we disagree with the contrary views expressed in Triad Data Services, Inc. v.

Jackson, supra, 153 Cal.App.3d Supp. 1, and Cardenas v. Mission Industries, supra, 226 Cal.App.3d 952, and disapprove those decisions to the extent they are inconsistent with the views we express today. The very point of the Labor Code’s fee-shifting provision, as with similar statutory schemes, is to discourage a court trial where there is little likelihood of a different outcome. (Cf. Wagy v.

Brown (1994) 24 Cal.App.4th 1, 10, fn. 5 [29 Cal.Rptr.2d 48] [“[I]n the relatively infrequent situation where the [statutory settlement] offer and judgment are equal . . . , as with a ‘push’ in the game of blackjack, the status quo ante prevails.”].) Accordingly, in an employer appeal from a commissioner’s decision, an incremental reduction in the administrative award constitutes success in the appeal; in an employee appeal, an incremental increase in the administrative award constitutes success in the appeal.

Appellants who fail to gain at least some improvement over the prior administrative award are “unsuccessful in the appeal” for purposes of triggering fee and cost shifting under

section 98.2(c). Under our construction of

section 98.2(c), the judgment Smith won at the trial de novo would be compared with the earlier administrative award to determine whether it was more favorable to him. As the Court of Appeal pointed out, in this case the judgment and the award are identical, in dollar amount and in elements °of damage, except that the judgment includes prejudgment interest on Smith’s nonwage claims and the commissioner’s award did not.

Relying on the judicial grant of prejudgment interest (approximately $230) on the nonwage items (the reimbursable business expenses), Smith asserts he did in fact obtain a more favorable judgment after trial de novo. At the time of the Berman hearing in this case, the commissioner was only authorized to award interest on wage order claims, not on other claims. (See §§ 98.1, 218.6, 200; cf. American Federation of Labor v. Unemployment Ins. Appeals Bd. (1996) 13 Cal.4th 1017, 1022 [56 Cal.Rptr.2d 109, 920 P.2d 1314]; Currie v. Workers’ Comp.

Appeals Bd. (2001) 24 Cal.4th 1109, 1111 [104 Cal.Rptr.2d 392, 17 P.3d 749] [construing workers’ compensation statute that did not purport to limit administrative body’s award of interest].) Those same statutory constraints on the commissioner’s authority to award interest on the nonwage items did not similarly bind the trial court, which heard Smith’s claims de novo. (Cf. Sales Dimensions v. Superior Court (1979) 90 Cal.App.3d 757, 761-762 [153 Cal.Rptr. 690] [discovery permissible in de novo trials following labor commissioner decisions].) The policy and purpose behind

section 98.2(c)— to give effect and finality to the commissioner’s decisions and awards by discouraging frivolous and meritless appeals—arguably would best be served by defining Smith’s success at trial without regard to the award of interest on the nonwage claims, which the commissioner, when hearing this case, lacked authority to award. However, we need not decide whether Smith’s award of prejudgment interest on his nonwage claims rendered his appeal successful, for purposes of cost and fee shifting, as that question is secondary to the broader question whether the Court of Appeal’s construction of

section 98.2(c), which we now approve, should be applied retroactively to Smith’s appeal in the first instance. e. Prospectivity of our holding Although as a general rule judicial decisions are to be given retroactive effect (Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978, 981-982 [258 Cal.Rptr. 592, 772 P.2d 1059]), there is a recognized exception when a judicial decision changes a settled rule on which the parties below have relied. (See, e.g., Brennan v. Tremco Inc., supra, 25 Cal.4th at p. 318; Droeger v. Friedman, Sloan & Ross, supra, 54 Cal.3d at p. 45; Woods v.

Young, supra, 53 Cal.3d at pp. 329-331.) “[Considerations of fairness and public policy may require that a decision be given only prospective application. ([Newman v. Emerson Radio Corp., supra, 48 Cal.3d] at pp. 983-984; see Estate of Propst (1990) 50 Cal.3d 448, 463 [268 Cal.Rptr. 114, 788 P.2d 628]; Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 305 [250 Cal.Rptr. 116, 758 P.2d 58]; Peterson v.

Superior Court (1982) 31 Cal.3d 147, 152 [181 Cal.Rptr. 784, 642 P.2d 1305].) Particular considerations relevant to the retroactivity determination include the reasonableness of the parties’ reliance on the former rule, the nature of the change as substantive or procedural, retroactivity’s effect on the administration of justice, and the purposes to be served by the new rule. (Newman v. Emerson Radio Corp., supra, at pp. 983-992; Peterson v. Superior Court, supra, at p. 152; Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 193 [98 Cal.Rptr. 837, 491 P.2d 421].)” (Woods v.

Young, supra, 53 Cal.3d at p. 330.) The Court of Appeal’s construction of

section 98.2(c) (comparison of the resulting judgment with the administrative award from which the appeal was taken to determine whether the appealing party was “unsuccessful” for fee-shifting purposes) represents a clear break from the Triad and Cardenas courts’ construction of the statute (fee-shifting provision becomes operative only when the trial court’s judgment completely eliminates the commissioner’s award). The latter standard appears to have been uniformly applied until the Court of Appeal’s decision in this case.

Smith reasonably relied on the Triad/Cardenas rule in weighing the potential costs of unsuccessfully appealing his commissioner’s award to the superior court. Under that rule, Smith would become liable for RVLG’s attorney fees and costs only if the superior court reduced his award to zero, an unlikely occurrence. The nature of the change effectuated by the new rule also supports our limiting our decision’s retroactivity. That change involves only the formula by which the superior court determines, postjudgment, whether the appeal before it was or was not successful for limited fee- and cost-shifting purposes.

Prospective application will remove no substantive defenses otherwise available to RVLG in this case. Retroactive application, on the other hand, would render Smith liable for RVLG’s considerable attorney fees and costs regardless of his partially meritorious claims, a result he likely did not envision when he elected to appeal the commissioner’s decision under the former rule. “Retroactive application of an unforeseeable procedural change is disfavored when such application would deprive a litigant of ‘any remedy whatsoever.’ (Chevron Oil Co. v.

Huson (1971) 404 U.S. 97, 108 [30 L.Ed.2d 296, 306, 92 S.Ct. 349]; Newman v. Emerson Radio Corp., supra, 48 Cal.3d at pp. 990-991.)” (Woods v. Young, supra, 53 Cal.3d at p. 330.) Concern for the administration of justice further supports prospective application of our decision, which, if applied retroactively, would stand to affect all pending appeals from the commissioner’s decisions that were filed in the superior court in reliance on the former rule.

Justice would not be served by designating such appeals successful or unsuccessful under a rule the appellants did not anticipate when they elected to appeal their administrative awards to the superior court. (Woods v. Young, supra, 53 Cal.3d at pp. 330-331; Moradi-Shalal v. Fireman’s Fund Ins. Companies (1988) 46 Cal.3d 287, 305 [250 Cal.Rptr. 116, 758 P.2d 58]; Li v.

Yellow Cab Co. (1975) 13 Cal.3d 804, 829 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393].) Our construction of the fee-shifting provision announced today will better effectuate the intent and purpose of the statute—to discourage frivolous, merit-less, and costly appeals from the commissioner’s decisions to the courts. That important objective would not be served by retroactively applying the new rule to appeals already filed and pending in the superior courts, nor will it be compromised by prospective application of our decision.

Accordingly, our holding today will be applied prospectively only to those appeals from the commissioner’s decisions and awards filed in the trial court after the date this decision becomes final. Conclusion The judgment of the Court of Appeal is reversed and the matter remanded to that court for further proceedings consistent with the views expressed herein. George, C. J., Werdegar, J., Chin, J., Brown, J., and Moreno, J., concurred. All further statutory references are to this code unless otherwise noted.

Section 203 provides that if an employer willfully fails to pay an employee’s final wages when due, the employer is subject to statutory waiting time penalties. “[A] good faith dispute that any wages are due will preclude imposition of waiting time penalties under

Section 203.” (Cal. Code Regs., tit. 8, § 13520.) Having reviewed the record of the trial de novo, we agree that the issue regarding statutory waiting time penalties turned largely on the resolution of disputed facts, and that substantial evidence supports the trial court’s denial of Smith’s claim for waiting time penalties. Accordingly, we shall not revisit that portion of the Court of Appeal’s judgment affirming the trial court’s denial of waiting time penalties on Smith’s cross-appeal.

An amicus curiae brief in support of Smith on the fee-shifting issue has been jointly filed by the Legal Aid Society-Employment Law Center, California Rural Legal Assistance, Inc., and several other interested nonparties. The Division of Labor Standards and Enforcement has likewise filed an amicus curiae brief in support of Smith.

Section 98.2(

c) provides in full: “If the party seeking review by filing an appeal to the municipal or 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.”

Section 98.2 was amended effective January 1, 2001. (Stats. 2000, ch. 876, § 2.) Former subdivision (

b) of

section 98.2, which was in effect in 1997 dining the course of the proceedings below, was redesignated with no change as subdivision (c). For clarity, all references herein are to the current designation of the fee-shifting provision,

section 98.2(c). We have likewise granted RVLG’s request in this court to take judicial notice of these same legislative history materials. It is noteworthy that under rule 26(

a) of the California Rules of Court, which sets forth general rules for awarding costs on appeal, when an appeal results in the affirmance of the judgment appealed from, the respondent is deemed the prevailing party, and the appellant the unsuccessful party. On the other hand, where the judgment is reversed, in whole or in part, the appellant is the prevailing party and the respondent the unsuccessful party. (Cal. Rules of Court, rule 26(a)(1).) Smith’s

interpretation of

section 98.2(c)—that any judgment he recovered in the de novo proceedings, even one equal to or less than the commissioner’s award, renders him the prevailing party—is at odds with rule 26(a)(l)’s definition of “prevailing party” for purposes of awarding costs on appeal. In this case the trial court’s judgment was substantially identical to the commissioner’s award, except for the addition of approximately $230 of prejudgment interest on the nonwage items, which the commissioner was without authority to award in the Berman hearing below.

Nor did Smith obtain a reversal on any claim the commissioner had decided against him. Therefore, for purposes of assessing costs on appeal, were rule 26(a)(1) applicable (but see Murillo v. Fleetwood Enterprises, Inc, supra. 17 Cal.4th at pp. 996-997 [Labor Code’s cost-shifting scheme supplants general cost-shifting rules]), RVLG, and not Smith, would be deemed the prevailing party below. One report prepared when

section 98.2(

c) was enacted suggests that the commissioner’s awards are affirmed approximately 80 percent of the time on appeal. (See Assem. Com. on Labor, Employment & Consumer Affairs, Rep. on Sen. Bill No. 1397 (1979-1980 Reg. Sess.) June 17, 1980.) The commissioner, in an amicus curiae brief filed in support of Smith, urges this court to adopt his specially proposed test for determining whether a party is “unsuccessful in the appeal” under

section 98.2(c). Under the commissioner’s proposed test, regardless of which party appeals, that party will be deemed “unsuccessful in the appeal” if the trial de novo results in a judgment greater than the amount that the employer unconditionally pays to the employee within 10 days of service of the commissioner’s decision and award.

However, under this proposal, as under the rule announced in Triad and Cardenas, an employer who appealed would still always be found “unsuccessful in the appeal,” and liable for the employee’s fees and costs, if the trial court entered a judgment in favor of the employee in any amount.

Hence, if the employer contested only $1,000 of a $3,000 award, paid the employee the uncontested $2,000 before the trial de novo, and obtained a judgment after the trial de novo awarding the employee $1 instead of $1,000 on the contested claim, that employer would still be deemed “unsuccessful in the appeal” and liable for the employee’s fees and costs. Although we acknowledge the commissioner’s good intentions in proposing an

interpretation of

section 98.2(

c) that encourages the immediate payment of uncontested portions of administrative awards, we are not at liberty to rewrite the fee-shifting provision here in issue to require payment within 10 days of uncontested portions of the commissioner’s awards. The remaining parts of the commissioner’s specially proposed fee-shifting test for the most part echo those aspects of the Triad/Cardenas test which, we have found, fails to reach an appropriate determination of success in a wage order appeal.

Section 2802, the provision requiring employers to reimburse employee business expenses, has since been amended to authorize the commissioner to add interest on awards for reimbursement of those expenditures. (§ 2802, subd. (b), added by Stats. 2000, ch. 990, § 1.) We further agree with the Court of Appeal’s observation that, as a general matter, success in an appeal from a labor commissioner’s award should be assessed only after excluding costs or damages awarded in the trial de novo that result solely from continuation of the litigation on appeal. (Cf. Wilson v.

Wal-Mart Stores, Inc. (1999) 72 Cal.App.4th 382, 393-394 [85 Cal.Rptr.2d 4] [postsettlement offer; prejudgment interest excluded from judgment in determination whether judgment more favorable than rejected settlement offer]; Bodell Construction Co. v. Trustees of Cal. State University, supra, 62 Cal.App.4th at p. 1521 [attorney fees incurred after settlement offer under Code Civ. Proc., § 998 excluded from judgment in determination whether judgment more favorable than rejected settlement offer]; Harvard Investment Co. v.

Gap Stores, Inc. (1984) 156 Cal.App.3d 704, 713 [202 Cal.Rptr. 891] [attorney fees].) The legislative purpose behind

section 98.2(

c) would be thwarted if costs or damages, including postaward interest, attributable solely to the appealing party’s continuation of the litigation on appeal, were included in the judgment for purposes of assessing success on appeal.