City

Ordinarily, constitutional and other challenges to referendum petitions are reviewed after an election so the electoral process is not disrupted. Here, plaintiff Wal-Mart Real Estate Business Trust (Wal-Mart) petitioned for a writ of mandate seeking to preclude or delay a referendum vote challenging the decision of defendant City Council of the City of San Marcos (the City) to allow Wal-Mart to build a second store in the City, on the grounds the referendum petition violated certain Elections Code provisions. Real parties in interest Lori A. Drake and Randall R. Walton successfully opposed Wal-Mart’s petition for writ of mandate, and the issue on appeal is whether they are entitled to attorney fees from Wal-Mart under a private attorney general theory. (Code of Civ. Proc., § 1021.5.)

We conclude the trial court’s denial of attorney fees against Wal-Mart constitutes abuse of discretion. We reject Wal-Mart’s contention that Drake and Walton are not successful parties within the meaning of section 1021.5 since after voters disapproved of the City’s action, Wal-Mart dropped the matter and the court was never required to consider the merits of its challenge to the adequacy of…