In Witt v. Jackson, the California Supreme Court reversed existing law, holding for the first time that a third party tortfeasor could raise an employer's negligence as an affirmative defense and that successful assertion of such a defense defeats an employer's right of reimbursement. 57 Cal. 2d at 72.
Providing that any willfully unpaid wages "shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced"