Alameda school district attorneys have asked Alameda County Superior Court to dismiss on a technicality a case against their client regarding Measure H.

The voter-approved measure requires residential, commercial and industrial property owners to pay a parcel tax, between $120 and $9,500 depending on property size, for the next four years. The estimated $18 million collected during that time will help balance the school district's short-fall because of state-wide budget cuts.

Mariners Square Marina and yacht dealership owner John Beery filed suit Aug. 25 claiming Measure H is unconstitutional and not specific in how the collected tax will be allocated. District co-counsel David Nied of Chapman, Popik & White LLP and Page Barnes of Foley & Lardner LLP, both San Francisco-based firms, filed a response to that claim by this week's deadline.

"We filed two motions, one of which was a motion to dismiss the case on the premise the requirements for this particular type of action were not met in the public summons," explained Barnes, who lives in Alameda.

The legal notice appeared in the Oakland Tribune Sept. 16, 23 and 30.

"We're alleging (Beery) failed to include some of those important requirements like translating the opening phrase in Spanish," Barnes added. "It also has to include a notice that unless defendants respond to the summons in 30 days, the court can take default against them. That wasn't included either, in English or in Spanish."


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Barnes said the district expects Beery will argue that his oversights were innocent mistakes that the court can overlook or that he should be given the opportunity to cure any defects in his summons. Barnes said the court should reject both of those arguments.

Beery's attorney did not respond for comment on the case.

The school district's attorneys also filed two legal responses to the lawsuit. One was to strike Beery's claim that the emergency, temporary parcel tax is unlawful because penalties for non-payment and the way it's collected are the same as for an ad valorem tax, which is based on a property's value.

"Just look at the law. What they are alleging is incorrect. That cause of action should be dismissed," Barnes added.

In the other legal response, the district is challenging Beery's allegations that use of Measure H funds has not been sufficiently specified, making it an unlawful general tax. "It is specified as a matter of law and it is fine," Barnes said.

A hearing is scheduled for Dec. 18 for a judge to hear oral arguments.

Meanwhile, the Feb. 3 hearing date still stands in the first case filed against the school district on Aug. 21. That lawsuit has George Borikas, who owns several residential properties in Alameda, claiming Measure H is not uniform.

"I take this litigation very personally. I am fighting to preserve the educational quality of 10,000 students and uphold the will of an overwhelming majority of voters who recognize the importance of passing this parcel tax for our kids," said Barnes, whose child attends school in Alameda. "I have a firm belief that the money being generated through Measure H is absolutely essential to maintaining the quality of our schools."