Hull

I respectfully dissent. Appellants have not demonstrated that the trial court abused its discretion in not awarding attorney fees as a matter of law. The majority has simply substituted its discretion for that of the trial court.

“ ‘ “The term [judicial discretion] implies absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. [Par.] To exercise the power of judicial discretion all the material facts in evidence must be both known and considered, together also with the legal principles essential to an informed, intelligent and just decision.” [Fn. omitted.]’ (In re Cortez (1971) 6 Cal.3d 78 , 85-86 . . . .)” (In re Marriage of Martin (1991) 229 Cal.App.3d 1196, 1200 [ 280 Cal.Rptr. 565 ].)

Code of Civil Procedure section 1021.5, in pertinent part, provides: “Upon motion, a court may award attorney’s fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a…

Here we hold that the trial court abused its discretion in denying attorney fees to real parties in interest for defense of a writ of mandate brought pursuant to Elections Code section 5025. We reverse the trial court’s order.

Jeffrey Young and Joanne Miller appeal from denial of their motion for attorney fees under Code of Civil Procedure section 1021.5. 1 In the spring of 1991 a fierce electoral battle took place in the City of Santa Barbara (City) concerning the future of the City’s water supply. Appellants signed two ballot arguments which appeared in the official voters’ pamphlet for the June 4, 1991 special election. Their argument supported Measure “S-91,” which advocated development of a water desalination plant by the City as an alternative to importation of water from northern California through the state water project. Appellants’ argument against Measure “T-91” opposed a bond measure to fund City participation in the state water project.

Respondents Diana P. Hull and Howard B. Walsh are members of “We Want Water” (WET), which sponsored, funded and supported Measure T-91. Respondents and WET filed a petition for writ of mandate in the superior court, pursuant…