Alweiss VS City of Oakland

RG19021124: Alweiss VS City of Oakland 08/18/2026 Hearing on Motion for Judgment on the Pleadings filed by City of Oakland (Defendant) CRS# A-19021124-004 in Department 512

Tentative Ruling - 08/13/2026 Elizabeth Riles

The Motion for Judgment on the Pleadings filed by City of Oakland on 07/20/2026 is Granted in Part.

Defendant City of Oakland (“Defendant” or “City”) Motion for Judgment on the Pleadings (“MJOP”) is DENIED IN PART, GRANTED IN PART WITHOUT LEAVE TO AMEND, and GRANTED IN PART WITH LEAVE TO AMEND.

City moves for judgment as to plaintiff Daniel Alweiss’ (“Plaintiff”) Complaint’s Second Cause of Action for Negligence (Vicarious Liability [Respondeat Superior]), Tenth Cause of Action brought pursuant to Health & Safety Code §§ 25363, 5410 and 5411, and Eleventh Cause of Action for Breach of Mandatory Duty pursuant to Gov’t Code § 815.6.

ANALYSIS OF MJOP

1. Second Cause of Action for Negligence (Vicarious Liability).

City’s MJOP with respect to the Complaint’s Second Cause of Action is DENIED as moot. Plaintiff dismissed this Cause of Action on 7/27/2026.

2. Tenth Cause of Action brought pursuant to Health & Safety Code §§ 5410, 5411 and 25363.

City’s MJOP with respect to the Complaint’s Tenth Cause of Action is GRANTED WITHOUT LEAVE TO AMEND.

The fundamental problem with both the Complaint’s Tenth Cause of Action and Plaintiff’s Opposition is that Plaintiff cites to no authority for the proposition that either Health & Safety Code (“H & S”) § 5410 et seq. or § 79650 et seq. create a private right of action in favor of Plaintiff against anyone, let alone public entity City.

H & S § 25363 cited in the Complaint has been repealed and replaced by H & S §§ 79665 and 79670. § 79665 provides:

“The standard of liability for costs recoverable pursuant to this part [H & S Code §§ 78000- 81050] is strict liability.”

However, although setting a standard of liability for costs in lawsuits brought pursuant to the relevant part of the Health & Safety Code, it does not by itself create a private right of action in favor of anyone. Instead, § 79650 provides in relevant part: RG19021124: Alweiss VS City of Oakland 08/18/2026 Hearing on Motion for Judgment on the Pleadings filed by City of Oakland (Defendant) CRS# A-19021124-004 in Department 512 “(a) A cost incurred by the department or regional board in carrying out or overseeing a response or a corrective action under this part or Chapter 6.5 (commencing with Section 25100) of Division 20 shall be recoverable pursuant to state or federal law by the Attorney General, upon the request of the department or regional board, from the liable person. “(b) The amount of response or corrective action costs incurred by the department or regional board shall be recoverable at the discretion of the department or regional board, either in a separate action or by way of intervention as of right in an action for contribution or indemnity.

“(f) Moneys recovered by the Attorney General pursuant to this section shall be deposited in the state account.”

Similarly, § 79700 provides:

“The state account shall be a party in any action for recovery of costs or expenditures under this part incurred from the state account.” (But see § 78005(b) stating the Legislature’s intent in enacting the Carpenter-Presley-Tanner Hazardous Substances Account Act (“HSAA”) includes to “compensate persons, under certain circumstances, for out of pocket medical expenses and lost wages or business income resulting from injuries proximately caused by exposures to releases of hazardous substances.”)

In sum, Chapter 8 of the Health & Safety Code at §§ 79550-79955 does not appear to create a private right of action in favor of anyone. Instead, it authorizes a lawsuit brought by the State Attorney General to recover public costs to remediate hazardous or toxic substance leaks or discharges.

H & S § 5410 et seq. also do not appear to create any private right of action in favor of Plaintiff. § 5411.5 provides in relevant part:

“(b) A person who fails to provide the notice required by this section is guilty of a misdemeanor and shall be punished by a fine of not less than five hundred dollars ($500) nor more than one thousand dollars ($1,000), or imprisonment for less than one year, or both the fine and imprisonment.”

§ 5412.5 provides in relevant part:

“(a) Any person who, without regard to intent or negligence, causes or permits any sewage or other waste, or the effluent of treated sewage or other waste to be discharged in or on any waters of the state, or discharged in or deposited where it is, or probably will be, discharged in or on any waters of the state that may cause contamination of waters used for a water-contact sport, as defined in Section 24155, shall reimburse the local health officer or the director of environmental health for the necessary and actual costs incurred to mitigate the threat of contamination and to protect the health and safety of the public. (b) The governing body of the county shall establish the amount of payment at a level sufficient

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG19021124: Alweiss VS City of Oakland 08/18/2026 Hearing on Motion for Judgment on the Pleadings filed by City of Oakland (Defendant) CRS# A-19021124-004 in Department 512 to pay the necessary and reasonable costs incurred by the local health officer or environmental health director administering this section and Section 5411.5.”

Nevertheless, City cites to Orange County Water Dist. v. Alcoa Global Fasteners, Inc. (2017) 12 Cal.App.5th 252, 298, which states in relevant part:

“to prevail in a private cost recovery action [under the HSAA], a plaintiff must establish that (1) the site on which the hazardous substances are contained is a “facility” under CERCLA's definition of the term, Section 101(9), 42 U.S.C. § 9601(9); (2) a “release” or “threatened release” of any “hazardous substance” from the facility has occurred, 42 U.S.C. § 9607(a)(4); (3) such “release” or “threatened release” has caused the plaintiff to incur response costs that were “necessary” and “consistent with the national contingency plan,” 42 U.S.C. §§ 9607(a)(4) and (a)(4)(B); and (4) the defendant is within one of four classes of persons subject to the liability provisions of Section 107(a) [42 U.S.C. § 9607(a)].’ ”

The basis for this holding is language from former § 25363(d), now contained in § 79670. Thus, the Orange County Water Dist. rule would appear to apply pursuant to § 79670. Plaintiff in Opposition does not address these pleading requirements at all or provide any information regarding how he could reasonably amend his Complaint to plead the necessary facts.

Wherefore, the Court GRANTS City’s MJOP of the Tenth Cause of Action WITHOUT LEAVE TO AMEND.

3. Eleventh of Action for Breach of Mandatory Duty (Gov’t Code § 815.6).

The Court GRANTS City MJOP of the Eleventh Cause of Action WITH LEAVE TO AMEND.

The parties appear to agree that the relevant standard for a § 815.6 claim is that Plaintiff must plead that (1) an enactment places an obligatory, non-discretionary duty on the City, (2) the enactment is designed to protect against the particular kind of injury alleged suffered by the plaintiff, and (3) the breach of that specific duty proximately caused the plaintiff’s injury. (See Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897.)

H & S § 5411 provides:

“No person shall discharge sewage or other waste,, in any manner that will result in contamination, pollution or a nuisance.”

A “person” includes “any city or department or agency thereof.” (§ 5410(b).)

The Court finds that § 5411 imposes a mandatory duty on City and that the Washington v. County of Contra Costa is distinguishable and does not support City’s position hear. However, it is not clear that the purpose of § 5400 et seq. is to protect private property owners like Plaintiff.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG19021124: Alweiss VS City of Oakland 08/18/2026 Hearing on Motion for Judgment on the Pleadings filed by City of Oakland (Defendant) CRS# A-19021124-004 in Department 512 Instead, the purpose appears to be to protect “waters of the state” as defined at § 5410(c) and to protect public entities from the costs associated with cleaning up hazardous waste. (See §§ 5411.5 and 5412.5.) However, Cal. State Water Resources Control Board (“SWRCB”) Order No. 2006-0003-DWQ also unambiguously orders municipalities like City to prevent Sanitary Sewer Overflows (“SSO”) as defined by the Order, and the Order’s purpose is, among other things, to prevent nuisances that interfere with the use and enjoyment of property, including presumably private property such as Plaintiff’s. (See Jenny Dec. Exh. D at ¶¶ 1, 2, 17, 18, A.1, A.7.A, C.1, C.2, D.1 and D.3.)

Therefore, in an abundance of caution, the Court authorizes Plaintiff to amend his Complaint’s Eleventh Cause of Action to assert SWRCB Order No. 2006-0003-DWQ as a basis for liability under Gov’t Code § 815.6 pursuant to the requirements of Guzman, supra, in addition to H & S Code § 5410 and 5411.

CONTESTING TENTATIVE RULINGS

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SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

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