1

Filed 8/3/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

LELAND TRAIMAN,

Plaintiff and Respondent,

v.

ALAMEDA UNIFIED SCHOOL 

DISTRICT,

Defendant and Appellant.

 A164935, A166022

 (Alameda County

Super. Ct. No. 

RG20061550)

School districts may levy “qualified special taxes” pursuant to 

Government Code section 50079 (section 50079) with the approval of 

two-thirds of district voters. To constitute a qualified special tax, the tax 

must “apply uniformly to all taxpayers or all real property within the school 

district” (with some statutory exemptions) and not be “imposed on a 

particular class of property or taxpayers.” Measure A, approved by voters in 

the Alameda Unified School District (District) in 2020, authorizes a tax on 

improved parcels at “the rate of $0.265 per building square foot not to exceed 

$7,999 per parcel.” In this action brought by respondent Leland Traiman, the 

trial court ruled that the tax was not applied uniformly and invalidated the 

tax. The court thereafter awarded Traiman $374,960 in attorney fees

pursuant to Code of Civil Procedure section 1021.5.

In these consolidated appeals, the District contends (1) the challenge to 

the tax rate was barred by judgments in prior validation actions (see Code 

Civ. Proc., § 860 et seq.); (2) the tax rate applies uniformly within the 
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meaning of section 50079; (3) to the extent any portion of Measure A is 

invalid, the remainder should be enforced; and (4) the award of attorney fees 

was improper.

We will reverse the judgment. The Measure A tax applies uniformly 

within the meaning of section 50079 because every nonexempt taxpayer and 

every improved parcel in the District is taxed using the same formula. 

Neither the language of the statute, case law, legislative history, nor public 

policy indicates that a school district cannot base a qualified special tax on 

building square footage with a maximum tax per parcel. Because the 

judgment must be reversed on this ground, we need not and do not decide the 

other issues raised by the District.

I. FACTS AND PROCEDURAL HISTORY

A. Prior School District Funding Measures

Before the adoption of Measure A in 2020, District voters have 

approved tax measures to provide funds for Alameda schools since at least 

2008. Three of these measures are germane to the issues raised here: 

Measure H in 2008, Measure A in 2011, and Measure B1 in 2016.

In June 2008, District voters adopted Measure H, by which non-exempt 

residential parcels were taxed at $120 per year, commercial and industrial 

parcels less than 2,000 square feet were also taxed at $120 per year, but 

commercial and industrial parcels greater than 2,000 square feet were taxed 

at $0.15 per square foot, up to a maximum tax of $9,500 per year. George J. 

Borikas, trustee of the George J. Borikas 1999 Revocable Trust, filed a 

lawsuit seeking to have the tax declared invalid. The trial court ruled in the 

District’s favor on the ground that classifications are permissible if rational 

and all taxpayers within the classification are treated equally. Borikas 

appealed.
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In 2011, while the appeal regarding Measure H was pending, District 

voters approved a separate measure (Measure A (2011)) to provide financial 

support for local school programs. The measure took an approach different 

than Measure H, authorizing a $299 tax on unimproved parcels, and—on all

improved parcels—a single tax formula of $0.32 per square foot of 

improvement with a $7,999 maximum tax amount regardless of use. 

Measure A (2011) was challenged in a “reverse validation action” (see 

Code Civ. Proc., § 863) in Nelco, Inc. v. Alameda Unified School District (Sept. 

20, 2011, Alameda County Superior Court Case No. RG11-574574) (Nelco I). 

The plaintiffs argued “there is a lack of uniformity . . . because parcels with 

buildings with a square footage of 24,997 or less pay $0.32 per square foot, 

whereas parcels with buildings with 24,998 square feet or more pay a flat 

rate of $7,999 regardless of the actual building size.” The superior court 

ruled that plaintiffs were incorrect and had failed to show “that the special 

tax imposed by Measure A violates the uniformity requirement of 

Government Code section 50079.” Judgment was entered, and no appeal was 

taken.

In 2013, the court of appeal issued its decision regarding Measure H in 

Borikas v. Alameda Unified School District (2013) 214 Cal.App.4th 135 

(Borikas). As we explain at length post, Borikas held that “Measure H’s 

imposition of a higher tax on commercial or industrial property over 2,000 

square feet exceed[ed] the District’s taxing authority under section 50079” 

because school districts cannot create classifications of taxpayers or property 

and tax them differently. (Id. at p. 165.) The court of appeal severed that 

language from Measure H, leaving a tax of $120 for all non-exempt parcels. 

(Id. at pp. 168–169.) 
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With Measure A (2011) set to expire in 2018, District voters approved 

Measure B1 in 2016. Measure B1 extended the funding provided by Measure 

A (2011) with the same per square foot and maximum amount of tax. It too 

was subject to a reverse validation action, Nelco, Inc. v. Alameda Unified 

School District (Oct. 26, 2017, Alameda County Superior Court Case No. 

RG16841074) (Nelco II). The court indicated in writing its intention to rule 

that the uniformity issue was addressed in the earlier Nelco I ruling, which 

“precludes the current challenge.” The parties entered a stipulated judgment 

that referenced Nelco I and Measure A (2011), stating that “[t]he tax 

authorized by Measure B1 is valid as a renewal of the previously validated 

Measure A.” 

B. Measure A (2020)

The District’s Board of Education placed a new measure on the March 

2020 ballot—“Measure A,” hereafter Measure A (2020)—to obtain voter 

approval of a qualified special tax that would fund increased salaries for 

District teachers and staff. This is the measure that is the subject of this 

appeal.

Following a formula similar to that approved in Nelco I, and 

distinguishable from what was disapproved in Borikas, Measure A (2020) 

stated: “Upon approval of two-thirds of those voting on this Measure, the 

District shall be authorized to levy an annual qualified special tax (education 

parcel tax) on all Parcels of Taxable Real Property, commencing on July 1, 

2020 for a period of 7 years. The tax shall be levied on improved parcels at 

the rate of $0.265 per building square foot not to exceed $7,999 per parcel and 
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at the rate of $299 per vacant parcel.”1 District voters approved Measure A 

(2020) on March 3, 2020. 

C. Traiman’s Reverse Validation Lawsuit

Traiman filed a Complaint for Invalidation in May 2020 (Code Civ. 

Proc., § 863), contending Measure A (2020) was invalid due to the section 

50079 requirement that qualified special taxes “apply uniformly to all 

taxpayers or all real property within the school district.” Although Measure 

A (2020) applied a single specified tax rate and cap to all nonexempt 

taxpayers and parcels, Traiman alleged that the cap created an 

impermissible classification. In particular, Traiman alleged the $7,999 tax 

cap on “ ‘improved parcels’ creates a classification that [] section 50079 did 

not permit” because “there are “ ‘improved parcels’ ” with one or more 

“ ‘building(s)’ ” over 30,184.91 building square feet[,]” and “[f]or each one of 

these ‘improved parcels,’ the effective tax rate is less than $0.265 per building 

square foot.” In his words, “[t]he larger the building, the lower the effective 

tax rate.”2 

The trial court held a bench trial on September 14, 2021. After issuing 

a proposed statement of decision in November 2021, the court issued its 

Judgment and Statement of Decision in April 2022. Based on Borikas, the 

court ruled: “Under the law, there simply cannot be any different 

1 Measure A (2020) contained a severability clause that stated, in part: 

“Upon approval of this Measure by the voters, should any part of the Measure 

or tax rate be found by a court of competent jurisdiction to be invalid for any 

reason, all remaining parts of the Measure and/or tax rate shall remain in 

full force and effect to the fullest extent allowed by law.” 

2 Traiman also challenged Measure A (2020) as to certain exemptions for 

senior citizens and others. The trial court dismissed this challenge on the 

District’s motion for judgment on the pleadings; that ruling is not at issue in 

this appeal. 
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classifications, distinctions, definitions, or square footage limitations in 

levying the tax on improved property. [¶ . . . ¶] The $7,999 cap in Measure A 

(2020) creates a classification between improved properties based on size and 

applies a different and preferentially lower tax rate to properties above 

30,184.91 square feet which is prohibited. The court concludes that Measure 

A (2020)’s imposition of a higher tax rate on improved properties under 

30,184.91 square feet than that imposed on improved properties with 

30,184.91 square feet or more exceeds defendant’s taxing authority under 

section 50079 and as such is invalid.” The court declared Measure A (2020) 

“invalid in its entirety except for the $299 flat tax on unimproved property.” 

The District timely appealed from the judgment (appeal number A164935). 

The trial court thereafter awarded Traiman $374,960 in attorney fees

as the successful party under Code of Civil Procedure section 1021.5. The 

District timely appealed this order as well (appeal number A166022). We 

consolidated appeal numbers A164935 and A166022.

II. DISCUSSION

The trial court ruled that the application of the Measure A (2020) tax to 

improved parcels at “the rate of $0.265 per building per square foot not to 

exceed $7,999 per parcel” violates the requirement in section 50079 that 

qualified special taxes “apply uniformly.” The District contends the court 

erred, because the same tax formula is imposed on every nonexempt taxpayer 

and as to every improved property in the District.

To decide the issue, we construe the “apply uniformly” requirement 

using well-established canons of statutory construction. We first examine the 

words of the statute because the statutory language is generally the most 

reliable indicator of the Legislature’s intent. Unless indicated otherwise, we 

give the words their ordinary and usual meaning and construe them within 
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their statutory context. Where the plain, commonsense meaning of the 

statutory language is unambiguous, the plain meaning controls. (Catlin v. 

Superior Court (2011) 51 Cal.4th 300, 304.) Where the statutory language is 

ambiguous, we may consider other indicia of legislative intent, including 

“ ‘the ostensible objects to be achieved, the evils to be remedied, the 

legislative history, [and] public policy . . . .’ ” (Big Creek Lumber Co. v. 

County of Santa Cruz (2006) 38 Cal.4th 1139, 1153.)

Applying these canons, we find that that the Measure A (2020) tax is 

applied “uniformly” as understood in section 50079. We therefore reverse the 

judgment, including the award of attorney fees.

A. Section 50079

Currently (and at the time Measure A (2020) was enacted and the trial 

court ruled), the statute reads: “Subject to Section 4 of Article XIII A of the 

California Constitution, any school district may impose qualified special taxes

within the district pursuant to the procedures established in Article 3.5 

(commencing with Section 50075) and any other applicable procedures 

provided by law.” (§ 50079, subd. (a), italics added.) 

“ ‘[Q]ualified special taxes’ ” are defined in subdivision (b)(1) of section 

50079 as “special taxes that apply uniformly to all taxpayers or all real 

property within the school district, except that unimproved property may be 

taxed at a lower rate than improved property” and certain enumerated 

persons may be exempted. (Italics added.)3 Subdivision (b)(2) of the statute 

adds that “ ‘[q]ualified special taxes’ do not include special taxes imposed on a 

3 Subdivision (b)(1) of section 50079 provides that qualified special taxes 

“may include taxes that provide for an exemption from those taxes” for 

persons who are 65 years old or older, receive Supplemental Security Income 

for a disability, or receive Social Security Disability Insurance benefits with 

income under a specified amount. 
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particular class of property or taxpayers.” (Italics added.) Taking these two 

subdivisions together, a qualified special tax is one that “appl[ies] uniformly” 

to all taxpayers or real property (with statutory exceptions), without taxing 

only a specific class of property or taxpayer.

B. Measure A (2020) and the Plain Meaning of the Statute

The common meaning of the word “apply,” as relevant here both now 

and when section 50079 was enacted, is to put to use or to have a practical 

bearing upon something. (See Oxford English Dict. (3d ed. 2008, published 

online March 2023; see also Merriam-Webster.com Dictionary [defining 

“application” as, among other things, putting something to use]; Black’s Law 

Dictionary (11th ed. 2019) p. 124 [“apply” means “to put to use with a 

particular subject matter”].) The common meaning of “uniformly” is “[i]n a 

manner that is always the same; without variation or alteration; at all times 

or in every case alike; invariably.” (Oxford English Dict. (3d ed. 2008, most 

recently modified version published online July 2023; see Borikas, supra, 214 

Cal.App.4th at p. 147 [quoting Oxford English Dict. (2d ed.) 1989, p. 59: “[o]f 

one form, character or kind; having, maintaining, occurring in or under, the 

same form always; that is or remains the same in different places, at 

different times, or under varying circumstances, exhibiting no difference, 

diversity, or variation”].) Therefore, to apply uniformly in the context of a 

District imposing a qualified special tax, the tax must be put to use as to all 

(nonexempt) taxpayers or properties in the District without variation.

Given the plain meaning of the statutory language, the tax imposed by 

Measure A (2020) “appl[ies] uniformly” to all taxpayers or property. (§ 50079, 

subd. (b)(1).) The same tax rate—$0.265 per building per square foot not to 

exceed $7,999 per parcel—is imposed on every improved parcel in the district. 

That same rate is imposed on every non-exempt taxpayer. The tax is not just 
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“imposed on a particular class of property or taxpayers.” (§ 50079, subd. 

(b)(2).)4 Accordingly, the Measure A (2020) tax is a qualified special tax for 

purposes of section 50079.

C. Traiman’s Argument

Even though Measure A (2020) applies the same tax formula to every 

improved parcel in the District, Traiman argues (and the trial court 

concluded) that the cap on the payable tax means the District has, in effect, 

created two classifications of properties that are taxed differently. No cited 

case has embraced this theory. 

Out of the Measure A (2020) language that the “tax shall be levied on 

improved parcels at the rate of $0.265 per building square foot not to exceed 

$7,999 per parcel,” Traiman hones in on the $7,999 cap and calculates that, 

at a rate of $0.265 per square foot, properties with a square footage of 

approximately 30,184.91 will incur $7,999 in tax. He then divides properties 

into two groups: those that have a square footage of not more than 30,184.91 

and those that have a square footage over 30,184.91. Taxpayers of properties 

of not more than 30,184.91 square feet will pay $0.265 per square foot; 

taxpayers of properties over 30,184.91 square feet will pay the $7,999 cap, so 

they will end up paying less than $0.265 per square foot. Based on this 

deconstruction, Traiman argues that the cap creates a facial classification

prohibited by section 50079 because it yields different effective tax rates for 

different properties. 

Traiman’s argument misperceives section 50079. The statutory 

language requires that the same tax be imposed on all taxpayers or 

4 Measure A (2020) contains a separate rate of tax ($299) for unimproved

parcels, but that is permitted under a 2018 amendment to section 50079. 

(Stats. 2018, ch. 305.) 
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properties in the district and not target a particular class of property or 

taxpayer; the statute does not further require that the application of the tax 

result in an identical effective tax rate for every taxpayer and every property. 

As we explain next, neither case law, legislative history, nor public policy 

supports the conclusion that a school district is powerless to impose a special 

tax merely because it caps the taxpayers’ liability.

1. Case Law: Borikas and Dondlinger

Traiman contends, and the trial court ruled, that the tax imposed by 

Measure A (2020) is invalid under Borikas, supra, 214 Cal.App.4th 139. 

Borikas, however, did not involve the tax structure established by Measure A 

(2020).

At issue in Borikas was whether section 50079 was violated by 

Measure H, by which the District had set up distinct categories of property 

and then applied different tax formulas to the categories: (1) residential 

parcels were taxed at $120 per year; (2) commercial and industrial parcels 

less than 2,000 square feet were taxed at $120 per year; but (3) commercial 

and industrial parcels greater than 2,000 square feet were taxed differently, 

using a formula of $0.15 per square foot up to a maximum of $9,500 per year.

(Borikas, supra, 214 Cal.App.4th at pp. 139–140.)

The threshold question in Borikas was whether the phrase “apply 

uniformly” in section 50079 reflected any limitation on a school district’s 

authority to tax property, beyond the limitations that existed before the 

statute’s enactment. The District argued that Measure H was fine as-is, 

because uniformity in tax law had a well-established meaning that allowed 

rational classifications under equal protection principles and only required 

that all taxpayers or property within a classification be treated the same. 

(Borikas, supra, 214 Cal.App.4th at pp. 148–151.) The plaintiffs, on the other 
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hand, urged that school districts could no longer classify taxpayers or 

property and tax them differently as in Measure H. (Id. at pp. 146–148.)5

In answering this threshold question, Borikas made three essential 

observations. First, if the Legislature had intended to grant school districts 

the broadest taxing authority, bounded only by equal protection principles as 

the District argued, there would have been no need to include the uniform 

application language in section 50079, subdivision (b). (Borikas, supra, 214 

Cal.App.4th at p. 151.) In particular, subdivision (b) explicitly exempts 

seniors and certain other taxpayers from the statute’s uniform application 

rule, which would not have been necessary if the “apply uniformly” language 

still left school districts free to apply different tax rates to different 

taxpayers. (Id. at pp. 151–152.) Second, statutes enacted to authorize other 

local agencies to impose taxes, using the same or similar uniformity language

as section 50079, indicated that such language did not allow agencies to tax 

classes of taxpayer or property differentially. (Id. at pp. 152 [e.g., § 50079.1,

containing an exception to uniformity that allowed unimproved property to be 

taxed at a lower rate than improved property], 158–164.) Third, the 

legislative history of section 50079 showed that the “apply uniformly” 

language had prompted school districts to seek and obtain an exemption for 

senior taxpayers, and to express concern about the ability to tax residential 

and nonresidential properties differently, reflecting the districts’ view of the 

legislation. (Id. at pp. 153–158.) 

Based on these observations, Borikas concluded that subdivision (b) of 

section 50079 was not mere surplusage, as the District had argued, but posed 

5 The plaintiffs in Borikas also challenged Measure H’s exemptions for 

senior and disabled taxpayers; the court of appeal decided those exemptions 

were permissible. (Borikas, supra, 214 Cal.App.4th at p. 140.)
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a new limitation on the taxing authority of school districts, precluding them 

from imposing special taxes “that classify and differentially tax property 

within the district.” (Borikas, supra, 214 Cal.App.4th at p. 164; see id. at 

p. 151 [“the definitional language at issue is language of limitation and does 

not empower school districts to classify taxpayers and property, and impose 

different tax rates”].) Accordingly, the court of appeal held that the District’s 

use of different tax rates for its different classifications of properties was 

improper: “Measure H’s imposition of a higher tax on commercial or 

industrial property over 2,000 square feet exceeds the District’s taxing 

authority under section 50079.” (Id. at p. 165.) The court severed this aspect 

of Measure H, leaving a tax of $120 to be imposed on non-exempt taxpayers

as to each parcel. (Id. at pp. 166–168.)

Borikas, however, did not address the situation presented in this 

appeal. It decided only that the District lacked authority under section 50079 

to impose one tax formula (a flat rate) for commercial or industrial property 

under 2,000 square feet, and impose a different tax formula (based on square 

footage and a cap) for commercial or industrial property over 2,000 square 

feet. It did not hold that the latter tax formula was invalid because it was 

based on square footage and a cap (as here), but because it was assigned to 

one explicit class of properties while a different formula was imposed on 

another explicit class of properties. Borikas did not indicate that the cap on 

maximum tax liability in Measure H was a “classification” of taxpayers or of 

real property, let alone one that would violate section 50079. 6 

6 In his respondent’s brief, Traiman now argues that Borikas construed

section 50079 to prohibit a tax cap because Borikas used plurals when 

stating, “we therefore conclude Measure H’s property classifications and 

differential tax burdens exceed the District’s taxing authority,” and it 

eliminated all classifications in preserving only a $120 flat tax for all 
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Put differently, Measure A (2020) avoids the impropriety adjudicated in 

Borikas by omitting the flat tax for a class of properties and by leaving only a 

single tax formula—based on square footage with a cap—for all properties 

and taxpayers. 

Unlike Borikas, the question here is whether the single tax formula of 

Measure A (2020) is not uniformly applied even though every nonexempt 

taxpayer and parcel is subject to it. The tax formula has two aspects: (1) it is 

based on the property’s square footage, with different properties incurring

different tax liability (rather than a flat rate yielding an identical tax bill for 

every property); and (2) it has a cap, such that some taxpayers will end up

paying per square foot while others pay $7,999, resulting in properties of 

different sizes yielding different effective tax rates per square foot. As shown 

next, case law suggests the square footage tax is permissible, and the cap 

does not render it impermissible.

Instructive to some extent is Dondlinger v. Los Angeles County 

Regional Park & Open Space Dist. (2019) 31 Cal.App.5th 994 (Dondlinger), 

which approved a square footage tax and suggests that what taxpayers end 

up paying is not relevant to whether a tax is uniformly applied. There, the 

court considered Public Resources Code section 5566, which provides that “a 

district may establish a zone or zones and a rate of tax for each zone, which is 

to be applied uniformly to all taxpayers within the zone.” (Italics added.) 

Voters had approved “a tax ‘on all improved parcels in the District at a rate of 

1.5 cents per square foot of structural improvements, excluding the square 

property types. (See Borikas, supra, 214 Cal.App.4th at p. 140, italics added.) 

Traiman is mistaken. The plurals are because Borikas concerned two express 

classifications of property, with different tax burdens on those classifications. 

Even though Measure H contained a cap, Borikas never indicated it had any 

significance to the uniform application requirement of section 50079.
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footage of improvements used for parking.’ ” (Dondlinger, supra, 31 

Cal.App.5th at p. 996.) The plaintiff argued that the tax did not apply 

uniformly because, among other things, “each different property has a 

different square footage of structural improvements.” (Id. at p. 998.) 

Acknowledging that Borikas had found section 50079 “to limit the 

tax-levying authority . . . beyond the constitutional equal protection limits 

that would have applied even absent such language,” Dondlinger upheld the 

square footage-based tax even though it yielded a different tax bill depending 

on the size of the property and whether the property contained improvements 

used for parking. (Dondlinger, supra, 31 Cal.App.5th at p. 1000.) The court 

explained: “We do not read the statute to require a uniform effect or outcome, 

but rather uniform application. We disagree with Dondlinger’s most basic 

premise that the tax is not uniformly applied because arithmetic functions 

render outcomes different for different taxpayers based on property size, type, 

or use, regardless of how taxpayer is defined. Each taxpayer is required to 

pay the same 1.5 cents per square foot of structural improvements on their real 

property not used for parking. One is only a ‘taxpayer’ for purposes of the

Measure A special tax if they own real property that contains structural 

improvements not used for parking. Classes of property are not treated 

differently; a residential garage is not treated differently from a commercial 

parking garage, and a house is not treated differently from an apartment 

building or a shopping mall.” (Id. at p. 1001, some italics added.) In short, 

the requirement that a tax “apply uniformly” does not mean that every 

taxpayer must receive a uniform outcome.

As applied here, Dondlinger indicates that a tax based on square 

footage does not violate the uniform application rule of section 50079, just as 
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a square footage tax does not violate the uniform application rule in Public 

Resources Code section 5566. Indeed, Traiman does not argue otherwise. 

Furthermore, although Dondlinger did not involve a cap, its view that a 

tax may be applied uniformly even if “arithmetic functions render outcomes 

different for different taxpayers based on property size” goes against the 

grain of Traiman’s argument that the cap in Measure A (2020) is 

impermissible because it yields different effective tax rates for larger 

properties. (Dondlinger, supra, 31 Cal.App.5th at p. 1001.) Both Traiman’s 

complaint and the trial court’s ruling were premised on the idea that all 

taxpayers must pay the same effective tax rate per square foot. As the trial 

court put it: “The $7,999 cap in Measure A (2020) creates a classification 

between improved properties based on size and applies a different and 

preferentially lower tax rate to properties above 30,184.91 square feet which 

is prohibited.” The inference from Dondlinger is that different outcomes for 

taxpayers, such as their effective tax rates, due to the application of a tax 

formula does not mean the tax formula fails the uniform application test.

Moreover, while Borikas did not decide the issue, its resolution of the 

case shuttered any notion that section 50079 requires that every taxpayer 

end up paying the same amount per square foot. In adjusting Measure H so 

it imposed just a flat rate tax, the court found it would leave a “coherent, 

functioning tax measure” and that its modification “aligns with one of the 

long-established remedies for discriminatory taxes, equalizing the tax by 

assessing all taxpayers at the preferred rate.” (Borikas, supra, 214 

Cal.App.4th at pp. 166–168, italics added.) By applying the flat tax to every 

property, the effective tax rate per square foot would vary depending on the 

parcel’s size: $120 for a 1,000 square foot parcel would yield a different 

effective tax rate per square foot than $120 for a 30,000 square foot parcel. 
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Plainly, Borikas saw no need for every taxpayer to pay the identical effective 

rate per square foot. (Id. at p. 168.)

In sum, while there is no cited case directly on point, the cases relied 

upon by the parties do not dissuade us from our reading of the plain language 

of section 50079. If anything, Dondlinger and Borikas suggest that, contrary 

to Traiman’s position, a tax formula that is imposed on all taxpayers or 

property types is applied uniformly, even if it results in a different effective 

tax bill or tax rate due to the size of the property. The cap in Measure A 

(2020) does not transform its permissible square footage tax into something 

impermissible on the theory Traiman asserts.

2. Legislative History

To the extent the phrase “apply uniformly” in section 50079 is 

ambiguous, the legislative history confirms that Traiman’s idea of extending 

Borikas to bar a cap on property taxes goes beyond what the Legislature had 

in mind.

Section 50079 originated in Assembly Bill No. 1440 (AB 1440) in 1987. 

AB 1440 was introduced by Assemblyman Tom Hannigan, not to limit 

existing district authority to impose taxes, but to make sure school districts 

had taxing authority despite the 1986 passage of Proposition 62. Proposition 

62, which (among other things) required two-thirds voter approval of local 

special taxes, created a concern that its language had inadvertently deleted

school district authority to impose special taxes under Government Code 

section 50075, which “provide[s] all cities, counties, and districts with the 

authority to impose special taxes, pursuant to the provisions of Article XIII A 
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of the California Constitution” without any further requirement as to 

uniformity.7 (See Borikas, supra, 214 Cal.App.4th at p. 144.)

Indeed, the overwhelming sentiment in the legislative history is the 

need to restore school district taxing authority. The preliminary analysis of 

the Assembly Committee on Revenue and Taxation explained: “Because of 

the passage of Prop. 62 in 1986, there is some question that school districts 

can impose special taxes. This bill clarifies current law to permit schools to 

impose such taxes with a two-thirds vote of the people.” The Senate Rules 

Committee stated that the legislation would “clarify that school districts have 

the authority to impose special taxes, subject to two-thirds voter approval, 

thereby restoring any taxing authority deleted by Proposition 62.” 

AB 1440 was amended in the Assembly to add the definition of 

qualified special taxes now found in section 50079, subdivision (b), including 

that such taxes “apply uniformly to all taxpayers or all real property within 

the school district.” (Borikas, supra, 214 Cal.App.4th at pp. 153–154 [the 

“Bader amendment”].) The precise motive for this amendment, however,

remains a mystery. Neither party in this appeal directs us to any legislative 

document setting forth what the language was intended to accomplish. In his 

statement on the Assembly floor urging passage of the bill, Hannigan 

explained the legislation had been amended “ ‘in the Revenue and Taxation 

Committee to make it clear that this special tax must apply uniformly to all 

7 As stated by the Senate Rules Committee: “Because the school’s sole 

authority to impose special taxes stems from Government Code section 50077 

[sic], Proposition 62 has been widely interpreted to eliminate district[’s]

special taxing authority. The California Taxpayers Association, which 

sponsored Proposition 62, indicates that it did not intend the proposition to 

have this effect.” 
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taxpayers in the district.’ ” (Borikas, supra, 214 Cal.App.4th at p. 154, italics 

added.)

As Borikas points out, some school districts responded to the Bader 

amendment by urging further amendments stating that districts could 

exempt taxpayers over 65 years old from the tax, and to allow a district to 

impose different tax rates on residential and nonresidential property. 

(Borikas, supra, 214 Cal.App.4th at pp. 154–156.) As passed by the 

Assembly, the bill permitted school districts to impose special taxes if they 

were uniform and did not discriminate against a class of property or 

taxpayers; the Senate amendments made an exception to allow an exemption 

for taxpayers 65 years or older. The Assembly approved the bill as amended, 

and the legislation was signed into law by the Governor in July 1987. (Id. at 

pp. 156–157.)

While this may suggest that some school districts and legislators 

viewed the “apply uniformly” language, without an amendment, to preclude 

districts from exempting seniors or treating residential and commercial 

property differently, we must be careful not to extrapolate too much from too 

little. In the first place, how the districts viewed the legislation does not 

equate to legislative intent, and the fact that legislators agreed to a senior 

exemption hardly suggests they were adamant that all taxpayers’ property be 

taxed the same or at the same effective rate. Indeed, for some districts or 

legislators, the language exempting seniors could have been motivated by a 

desire to avoid uncertainty and litigation by making clear that districts would 

have continued authority to exempt seniors, rather than a confession that the 

“apply uniformly” language erased such authority.

Moreover, in this case, what the legislative history does not say is as 

important as what it does say. Accepting that the Legislature saw the “apply 
19

uniformly” language to require uniform application to all taxpayers and all 

types of property (commercial and residential, improved and unimproved), 

there is nothing to suggest that anyone thought a tax rate could not take 

account of the size of the property. (See Borikas, supra, 214 Cal.App.4th at 

p. 158 [noting districts did not seek exemption for differential tax treatment 

of parcels by size].) Nothing in the legislative history states that every

taxpayer must end up paying the same tax, or that every taxpayer must 

enjoy the same effective tax rate as Traiman urges here. To the contrary, 

legislators were well aware that school districts imposed parcel taxes at a flat 

rate, resulting in different effective tax rates. (Ibid.) Furthermore, nothing 

in the legislative history of section 50079 states that a school district cannot 

cap taxpayers’ liabilities. And nothing in the legislative history supports the 

conclusion of the trial court here that “[u]nder the law, there simply cannot 

be any different classifications, distinctions, definitions, or square footage 

limitations in levying the tax on improved property.” The language in 

Borikas that districts cannot “classify and differentially tax property within 

the district” (id. at p. 164) should not be expanded beyond the legislative 

history on which it is based.

In our view, the takeaway from the legislative history of section 50079 

is that lawmakers and school districts urgently wanted the districts to have 

the power to impose special taxes with voter approval, notwithstanding the 

advent of Proposition 62, and for districts to have the right to exempt seniors 

despite the requirement that the tax apply uniformly to all taxpayers or real 

property and not discriminate against a class of taxpayer or property. By no 
20

means was a district’s use of a cap on tax liability the “evil” the legislators 

sought to address.8

3. Public Policy

The point of section 50079 and Borikas is that school districts cannot 

create classifications of taxpayers or types of real property like they used to 

do (except as expressly permitted by the statute), and then assign different 

taxes or tax rates to those classifications. But that is not what Measure A 

(2020) does. It does not, for example, target a particular class of taxpayer or 

distinguish commercial properties from residential properties.

Indeed, Measure A (2020) does not categorize property at all. It does 

not, by its express terms, set up two classifications— one of parcels under 

30,184.91 square feet of improvements and another of parcels over 30,184.91 

square feet of improvements—and then tax them differently. Instead, it 

imposes a square footage tax at the rate of $0.265 per building square foot on 

all parcels; it then essentially promises voters it will not collect more than 

8 Traiman argues that the Legislature implicitly affirmed Borikas by 

declining to pass legislation that would have overruled it. In the 2013–2014 

legislative session, Assembly Bill 59 would have allowed school districts to 

impose parcel taxes with classifications of taxpayers and property, abrogating 

Borikas, but “AB 59 died in the Assembly.” Around the same time, Senate 

Bill 1021 sought to abrogate Borikas by allowing school districts to classify 

certain types of property (residential, multifamily residential, industrial, or 

commercial) and tax each classification differently, as long as all properties 

within the classification remained the same. The bill never made it out of 

committee. Traiman argues that, by rejecting AB 59 and SB 1021, the 

Legislature implicitly affirmed Borikas’s central holding. However, neither 

legislation pertained to the use of a cap. Moreover, dead bills tell no tales: 

unsuccessful legislation generally has little relevance in interpreting a 

statute. (People v. Mendoza (2000) 23 Cal.4th 896, 921; Granberry v. Islay 

Investments (1995) 9 Cal.4th 738, 746.) 
21

$7,999 on any one parcel, no matter who owns it, and no matter what the 

property’s type or use.

The difference between (1) explicitly classifying properties and taxing 

them separately, and (2) having a tax formula that ends up taxing properties 

at different rates, is significant. The first applies a non-uniform tax, which 

the statute prohibits; the latter yields a non-uniform effective rate, which the 

cases have embraced.

Furthermore, Traiman’s effort to deconstruct the Measure A (2020) tax 

formula to make it look like it classifies properties based on size is 

unpersuasive for another reason: any tax can be made to appear to create 

classifications and tax them differently. The square footage tax approved in 

Dondlinger, for example, was presented as “1.5 cents per square foot of 

structural improvements,” excluding improvements used for parking. But it 

could be viewed as creating classifications for each size of parcel: a tax of 1.5 

cents on parcels with 1 foot of structural improvement, 3 cents on parcels 

with 2 feet of structural improvement, 4.5 cents on parcels with 3 feet of 

structural improvement, and so on. It could also be viewed as creating 

classifications based on whether a property contained a structural 

improvement for parking. The flat tax embraced in Borikas was $120 per 

parcel. But it could be viewed as creating classifications for each size of 

parcel: a tax of 0.120 cents per square foot for parcels of 1,000 square feet, a 

tax of 0.040 cents per square foot for parcels of 3,000 square feet, and the 

like. Without flat taxes, square footage taxes, taxes with caps, regressive 

taxes, or progressive taxes, it is unclear how a school district could impose 

taxes for its schools at all, even though the very purpose of section 50079 was 

to empower districts to do so.
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It also must be remembered that voters approved Measure A (2020) by 

a super-majority two-thirds vote to support their schools, teachers, and staff, 

with the understanding that no one, no matter how big their buildings or how 

they put those buildings to use, would have to pay more than $7,999 in tax. 

Since the Legislature and the courts have both recognized that differences in 

the effective tax rate may be tolerated, we fail to see how Measure A (2020) 

unlawfully discriminates against anyone. Moreover, there is no indication

that this is anything the Legislature did not want school districts to do.

In fact, a strong clue to the meaning of “apply uniformly” in section 

50079, subdivision (b)(1), lies in the statute’s subdivision (b)(2), which 

reads: “ ‘Qualified special taxes’ do not include special taxes imposed on a 

particular class of property or taxpayers.” It is clear from subdivision (b)(2) 

that the Legislature was concerned about explicit categories that Districts 

might set up in a tax measure, including wholesale exemptions of specific 

types of taxpayers or properties. There would be no reason to include 

subdivision (b)(2), however, if the uniform application principle in subdivision 

(b)(1) prohibited all classification of taxpayers or real property, facial or de 

facto, as Traiman and the trial court concluded. To the contrary, the 

inclusion of subdivision (b)(2) reflects a legislative understanding that the 

uniform application required by subdivision (b)(1)—imposing the same tax 

formula on all—might inevitably result in some disparities in tax rate among 

de facto classifications (e.g., due to property size, as here), but only the use of 

explicit facial classifications would fall outside the authority granted to 

districts by the statute. For this reason, the explicit categories created by 

Measure H were properly stricken in Borikas, but there is no basis for 

striking the uniformly applied tax formula here.
23

We therefore hold that, under the circumstances of this case, a cap on 

maximum tax liability does not create classifications and differential taxation 

that violate section 50079, subdivision (b). It does not transform a 

permissible square footage tax into a tax that is not uniformly applied for 

purposes of the statute. In light of the statute’s plain language and 

consistent with case law, legislative history, and public policy, the tax 

imposed by Measure A (2020) is a qualified special tax, which applies 

uniformly to all taxpayers or real property and does not discriminate against 

a class of taxpayer or property. Accordingly, the trial court erred in ruling 

Measure A (2020) invalid.9

III. DISPOSITION

The judgment is reversed.

9 In September 2022, the District filed a motion asking this court to take 

judicial notice of the records of the legislative history of AB 1440. We 

deferred ruling on the motion until our consideration of the merits of the 

appeal. In October 2022, Traiman filed a motion seeking judicial notice of 

material including bills not enacted by the Legislature, records related to 

amendments to section 50079, and election results regarding school district 

parcel taxes. The District opposed the motion, and we deferred our ruling 

pending our consideration of the merits. We hereby grant both motions. 
24

_________________________

Chou, J. 

We concur:

_________________________

Jackson, P.J.

_________________________

Burns, J.

A164935, A166022 / Traiman v. Alameda Unified School District
25

Trial Court: Superior Court of Alameda County

Trial Judge: Julia Spain

Counsel: Dannis Woliver Kelley; Sue Ann Salmon Evans, Luke L. 

Punnakanta, and William Benjamin Tunick, for Defendant and Appellant.

Lozano Smith; Sloan R. Simmons, Daniel Michael Maruccia, Constantine C. 

Baranoff, California School Boards Association Education Legal Alliance; 

Keith Jonathan Bray, Kristin Dianne Lindgren, and Dana Lee Sever Scott, 

Counsel for amicus curiae on behalf of Defendant and Appellant.

Brillant Law Firm; David Joseph Brillant and Cameren Neill Ripoli, for 

Plaintiff and Respondent.