Metropolitan News-Enterprise


Monday, August 18, 2008


Page 3


C.A. Overturns Award of Fees to Accused Child Abuser


By a MetNews Staff Writer


A San Diego County man who obtained a writ of mandate requiring that officials classify a complaint of child abuse as “unfounded” rather than “inconclusive” was not entitled to an award of fees under the private attorney general statute, the Fourth District Court of Appeal ruled Friday.

Div. One, in an unpublished opinion by Justice Joan Irion, said San Diego Superior Court Judge Eddie Sturgeon erred in awarding fees to attorneys for John Paul Starting because none of the criteria of Code of Civil Procedure Sec. 1021.5 were satisfied.

Starting was the subject of a 2003 complaint charging that he used a foreign object to sexually abuse the three-and-half-year-old son of the woman to whom he is now married. In accordance with state law, the county investigated and reported to the state’s Child Abuse Central Index that the complaint was “inconclusive.”

After Starting’s request for administrative review resulted in the same finding, he brought a petition for writ of mandate. Sturgeon, after hearing testimony from the investigator, Starting, and Starting’s wife, the judge ruled that the allegation was unfounded and ordered the that the index be corrected.

The judge subsequently awarded more than $30,000 in fees under Sec. 1021.5, concluding that “from a practical perspective...the statutory criteria has been met.”

The trial judge abused his discretion, Irion wrote.

To be awarded fees under the statute, the justice explained, the prevailing party must enforce “an important right affecting the public interest,” must obtain “a significant benefit” for “the general public or a large class of persons,” and must show that “the necessity and financial burden of private enforcement are such as to make the award appropriate.”

Starting, she said, met none of those requirements because the suit “was focused on obtaining relief for himself under the unique facts of his case” and did not have a significant impact on others, whose right to seek legal redress for an erroneous finding by child abuse investigators was already well established.

The case is Starting v. County of San Diego, D051184.


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