I respectfully dissent.
In the action brought by La Rosse against a third party, neither La Rosse nor her attorney gave to the Department of Health Care Services the notice of the pendency of the action called for by Labor Code section 3853, whose provisions are made available to the department by virtue of Welfare and Institutions Code section 14117 (California State Auto. Assn. Inter-Ins. Bureau v. Jackson, 9 Cal.3d 859, 867 [109 Cal.Rptr. 297, 512 P.2d 1201]). In consequence of that failure, the department was denied the opportunity to claim its statutory lien in that action.
Because of that failure and because La Rosse had in writing agreed to reimburse the department and to direct her attorney to do so from any recovery, and upon the other facts alleged, the state should have been entitled to an equitable lien upon any of the settlement proceeds of $120,000 which came into possession of La Rosse or her attorney.
The attorney knew there had been Medi-Cal payments made and knew of the department’s right to a lien in such a case.
*383The attorney had available to apply in satisfaction of the lien at least the 75 percent he sought to have the department accept in full; and to that, at least, an equitable lien should have attached. Such a lien would be comparable to that of an attorney based upon a contract for a lien. (See Isrin v. Superior Court, 63 Cal.2d 153, 157 [45 Cal.Rptr. 320, 403 P.2d 728].)
Since the recovery proceeds did come into the attorney’s possession, he should be required to assert his defense.
A petition for a rehearing was denied November 30, 1973, and petition for a hearing by the Supreme Court was denied January 10, 1974.