Motion for Summary Judgment
Vadim Miesegaes v. Department of State Hospitals-Atascadero, 22CVP-0362
Hearing: Motion for Summary Judgment
Date: June 30, 2026
PROPOSED RULING
Vadim Miesegaes (Plaintiff) filed this action on November 16, 2022, against the Department of State Hospitals - Atascadero (Defendant or ASH). The complaint challenges the validity of Administrative Directive 810 (AD810), section III, subsections A and B. 1 The complaint alleges those subsections constitute underground regulations which violate the Administrative Procedure Act. (Gov. Code, § 11340 et seq.) The complaint states a single cause of action for declaratory relief.
Section III of AD810 covers “Procedures Related to the Hospitalized Patients.” Subsection III.A prohibits visitors in patients’ rooms and directs staff to knock and announce themselves before entering patient rooms whenever possible. Subsection III.B, entitled “Observation Rounds/Wellness Rounds,” allows ASH staff to search patient occupied areas at various times. (Cmp., Ex. 1.) In August 2021, the Office of Administrative Law (OAL) determined that subsections III.A and III.B met “the definition of a ‘regulation’ that should have been adopted pursuant to the APA but were not.” (Cmp., Ex. 2.)2
On calendar is Plaintiff’s motion for summary judgment. In its initial opposition, ASH reported the Department of State Hospitals (the Department) was in the process of promulgating a regulation that is substantively similar to AD810 in scope; and once adopted, AD810 would need to be revised to comply with that new regulatory authority. (11/05/25 Black Decl., ¶ 12.) After the reply was filed, the Department submitted a Notice of Substantive Law Change in California Law reporting the new regulations that became effective on December 8, 2025, and were published in title 9 of the California Code of Regulations, sections 4335 and 4340. (01/09/26 Notice, Ex. A.)
Regulation 4335 is entitled “Entry into Patient Rooms,” and sets boundaries on patients entering other patients’ rooms and also provides that “[e]xcept in emergency situations, staff will either
1 The version of AD810 attached to Plaintiff’s complaint is dated June 24, 2020. ASH reports AD810 is updated approximately every other year with the most recent version of issued on June 25, 2025. (11/05/25 Black Dec., ¶ 11, Ex. F.) At that time subsections III.A and III.B were renumbered to sections IV.A and IV.B but remain unchanged substantively. (Ibid.) The Court and the parties continue to refer to the original sections. 2 The OAL’s “determination that a particular administrative guideline is an underground regulation is not binding on the courts, but it is entitled to deference. [Citations.]” (
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
knock on the door or announce their presence before entering a patient’s room.” Regulation 4340, entitled “Observation Rounds,” requires staff to conduct observation rounds at least once every two hours. ASH reports it has issued a new version of AD810, which became effective on January 28, 2026, which implements the standards set out in regulations 4335 and 4340. (02/27/26 Black Decl., Ex. A. [2026 AD810, Secs. IV.A, IV.B].)
A.
Legal Standard
Summary judgment is proper when there are no triable issues of material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In ruling on a motion for summary judgment, the court must view the evidence, and the inferences reasonably drawn therefrom, in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
When a plaintiff moves for summary judgment, the plaintiff has the initial burden to produce admissible evidence on each element of each cause of action entitling him or her to judgment. (Code Civ. Proc., § 437c, subd. (p)(1).) If the plaintiff makes a prima facie showing, then the burden shifts to the defendant to show the existence of a triable issue of material fact as to the cause of action or a defense thereto. (Ibid.)
B.
Discussion
The complaint seeks a declaration that subsections III.A and III.B of AD810 constitute underground regulations. (Code Civ. Proc., § 1060.)
An “underground regulation” “means any guideline, criterion, bulletin, manual, instruction, order, standard of general application, or other rule, including a rule governing a state agency procedure, that is a regulation as defined in Section 11342.600 of the Government Code, but has not been adopted as a regulation pursuant to the [Administrative Procedure Act] and is not subject to an express statutory exemption from adoption pursuant to the APA.” (Cal. Code Regs., tit. 1, § 250(a)(1).)
“When determining if an order or standard is a regulation, two factors are reviewed. First, whether the agency intended the order or standard to apply generally. And second, whether the order or standard governs the agency’s procedure.” (Malaga County Water Dist. v. Central Valley Regional Water Quality Control Bd. (2020) 58 Cal.App.5th 418, 436, citing Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 571.)
Section I of AD810 states the purpose of the directive is to “outline[] the procedures for the handling and maintaining of security on locked and open units.” Subsections III.A and III.B impose substantive standards on patients’ rights (a) to have visitors in their room and (b) allowing staff to enter patients’ rooms during wellness rounds. This is sufficient to mark AD810 as an underground regulation. Defendant’s argument that AD810 is not a rule of general application is not persuasive. (See Vasquez v. Dept. of Pesticide Regulation (2021) 68
Cal.App.5th 672, 689 [“ ‘Generally speaking, a legislative action is the formulation of a rule to be applied in all future cases ...’ ”].)
Moreover, the fact the Department subsequently adopted regulations governing these exact subjects is evidence that subsections III.A and III.B of AD810 were underground regulations.
The Court finds Plaintiff has met his initial burden to show he is entitled to declaratory relief.3
In response, ASH argues the litigation is moot because regulations 4335 and 4340 supersede any prior versions of AD810, and as such there is no present controversy for the Court to determine. (Viola v. Dept. of Managed Health Care (2005) 133 Cal.App.4th 299, 308-309 [“fundamental basis of declaratory relief is the existence of an actual, present controversy”].) Plaintiff argues the matter is subject to an exception to the mootness doctrine because the same dispute could arise again between the same parties. (San Diego Public Library Foundation v. Fuentes (2025) 111 Cal.App.5th 711, 722 [setting forth exceptions to mootness doctrine].)
The Court need not determine whether this action is moot in ruling on the present motion. The only issue before the Court is whether Defendant has created a triable issue of material fact. The Department’s adoption of the new regulations raises two factual questions. First, is there a present controversy for purposes of Plaintiff’s requests for declaratory and injunctive relief? Second, do the facts of this case fall within an exception to the mootness doctrine?
The motion for summary judgment is therefore denied.
ORDER (PROPOSED)
Plaintiff’s motion for summary judgment is denied.
3 Plaintiff spends much of his opening memorandum addressing Defendant’s defenses. In moving for summary judgment, the Plaintiff’s initial burden does “not include disproving any affirmative defenses asserted by defendants.” (Oldcastle Precast, Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 564.)
3